Petition for Writ of Certiorari — Michael David Carruth, Petitioner v. John Q. Hamm, Commissioner, Alabama Department of Corrections
Supreme Court briefMay 21, 2024
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NO. ___________
In The Supreme Court of the United States
____________________________________
MICHAEL DAVID CARRUTH, Petitioner
VS.
JOHN Q. HAMM, Commissioner, Alabama Department
of Corrections, Respondent
_____________________________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________________________
PETITION FOR A WRIT OF CERTIORARI
_____________________________________________
Thomas Martele Goggans
Counsel of Record
Thomas M. Goggans
Attorney at Law
2030 East Second Street
Montgomery AL 36106
334.834.2511
t.goggans@tgoggans.net
Counsel for Petitioner
May 21, 2024
CAPITAL CASE
QUESTIONS PRESENTED
When a state by statute or rule imposes a duty upon appellate counsel for the
defendant-appellant in a criminal case to file a petition for a writ of certiorari with
the state’s highest appellate court after an adverse decision by a lower appellate
court, does the defendant-appellant have a right to counsel through the point of the
filing of a petition for a writ of certiorari in the appellate process?
Whether a state court procedure about which state trial courts were apparently
unsure and which appears to have been addressed only once in a published appellate
opinion in a non-capital case not involving a state mandate that appellant counsel
file a petition for a writ of certiorari after an adverse decision of a lower appellate
court in a death penalty case was not firmly established and regularly followed and
whether the argument of the issue asserted to be barred was fairly presented in state
court albeit not by utilizing a designated rule of procedure the designation of which
was not firmly established and regularly followed but by otherwise presenting
through and to the state’s highest court?
i
LIST OF PARTIES
The Petitioner (and petitioner-appellant below) is Michael David Carruth . The
Respondent (and respondent-appellee below) is the commissioner of the Alabama
Department of Corrections, a position currently held by John Q. Hamm. Because
Petitioner is not a corporation, a corporate disclosure statement is not required under
Supreme Court Rule 29.6.
ii
LIST OF RELATED PROCEEDINGS
State Court
State v. Carruth, No. CC-2002-378, 379, 380, and 381 (Circuit Court for Russell
County, Alabama) (capital trial and sentencing)
Carruth v. State, CR-03-0327 (Ala.Crim.App. Aug. 26, 2005) (affirming
conviction and sentence)
State v. Carruth, No. CC-2002-378.70 (Circuit Court for Russell County,
Alabama) (granting in part, later reversed; denying relief in post conviction)
Ex parte Carruth, No. 1070135 (Ala. Feb. 8, 2008) (denying Rule 2,
Ala.R.App.P. motion to allow out of time petition for writ of certiorari)
State v. Carruth, CR-06-1967 (Ala.Crim.App. May 30, 2008) (reversing grant
of Rule 32.1(f), Ala.R.Crim.P. out of time petition for writ of certiorari)
Ex parte Carruth, No. 1071618 (Ala. Aug. 24, 2009) (quashing previously
issued writ of certiorari to review reversal of Rule 32.1(f), Ala.R.Crim.P. grant of out
of time petitioner for a writ of certiorari)
Carruth v. State, CR-12-0505 (Ala.Crim.App. Mar. 14, 2014) (affirming denial
of relief in post conviction)
Ex parte Carruth, No. 1130852 (Ala. Oct. 17, 2014) – denying writ, no opinion)
iii
Federal Court
Carruth v. Alabama, No. 09-6133 (Supreme Court of the United States Nov.
30, 2009) (denial of petition for writ of certiorari regarding out of time petition for
writ of certiorari)
Carruth v. Hamm, No.
2:14-CV-1107-WKW , (M.D.Ala. Sept. 20, 2022)
(denying petition for writ of habeas corpus)
Carruth v. Comm’r Ala. Dept. of Corr. No. 22-13548 (11th Cir. Mar. 1,
2024)(affirming denial of petition for writ of habeas corpus)(Apr. 8, 2024 denied
petition for panel rehearing)
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED…………………………………………………………………i
LIST OF PARTIES………………………………………………………………..................ii
LIST OF PROCEEDINGS…………………………………………………………………..iii
ITEMS CONTAINED IN APPENDIX…………………………………………………….iv
TABLE OF AUTHORITIES………………………………………………………………..vi
PETITION FOR A WRIT OF CERTIORARI……………………………………………...1
OPINIONS BELOW…………………………………………………………………………..1
JURISDICTION……………………………………………………………………………….1
CONSTITUTIONAL, STATUTORY AND RULES PROVISIONS…………………….2
STATEMENT OF THE CASE………………………………………………………………4
REASONS FOR GRANTING THE WRIT……………………………………..................9
The writ should be granted because, contrary the Alabama state courts’
decisions, this Court’s opinions addressing the right to counsel on appeal
when states opt for such and Alabama’s statutes and rules imposing
upon appellate counsel a duty to file a petition for a writ of certiorari
after an adverse lower appellate court decision in death penalty cases
warrant the conclusion that the Constitution requires counsel in
Alabama death penalty cases through the filing of a petition for a writ
of certiorari with the Alabama
Supreme Court…………………………………………………………………………9
The asserted procedural bar of Carruth’s claim that his counsel was
ineffective in failing to file a petition for a writ of certiorari on direct
appeal with the Alabama Supreme Court and failing to advise him of
further appellate options was not firmly established and regularly
followed and the claim was fairly presented in state court for exhaustion
purposes…………………………………………………………………….…………14
CONCLUSION……………………………………………………………………………….19
v
ITEMS CONTAINED IN THE APPENDIX
Appendix A: Opinion, Carruth v. Comm’r Ala. Dep’t. of Corr., No. 22-13548, 11th
Cir. Mar. 1, 2024
Appendix B: Order granting in part and denying in part a certificate of appealability,
Carruth v. Hamm, No. 2:14-CV-1107-WKW, M.D. Ala. Nov. 8, 2022
Appendix C: Memorandum Opinion and Order, Carruth v. Hamm, No. 2:14-CV-107WKW, M.D.Ala. Sept., 20, 2022
Appendix D: Opinion, Carruth v. Alabama, No. 09-6113, U.S.Sup.Ct. Nov. 30, 2009
Appendix E: Opinion, Ex parte Carruth, No. 1071618, Ala. Apr. 24, 2009
Appendix F: Opinion, Carruth v. State, No. CR-06-1967, Ala.Crim.App. May 30, 2008
Appendix G: Order granting out of time petition for writ of certiorari, No. CC-2002378.60, Russell County, Alabama Circuit Court Aug. 2, 2007
Appendix H: Order denying motion to suspend rules to allow out of time petition for
writ of certiorari, No. 107135, Ala. Feb. 28, 2008
Appendix I: Certificate of Judgment denying writ of certiorari in Rule 32,
Ala.R.Crim.P. proceeding, No. 1130852, Ala. Oct. 17, 2014
Appendix J: Opinion, Carruth v. State, denying Rule 32, Ala.R.Crim.P. relief, No.
CR-12-0505, Ala.Crim.App. Mar. 14, 2014
vi
Appendix K - Order denying Rule 32, Ala.R.Crim.P. relief, State v. Carruth, No. CC2002-378.60, Russell County, Alabama Circuit Court Dec. 26, 2012
Appendix L - Order on motion to dismiss Rule 32, Ala.R.Crim.P., No. CC-2002378.60, Russell County, Alabama Circuit Court, Feb. 14, 2012
Appendix M - Order denying petition for panel rehearing, Carruth v. Comm’r. Ala.
Dep’t. of Corr., No. 22-13548, 11th Cir. Apr. 8, 2024
vii
TABLE OF AUTHORITIES
Cases:
Carruth v. Hamm, 2022 U.S. Dist. LEXIS 169587, 2022 WL 4357471
(M.D.Ala. 2022)…………………………………………...................................10, 12
Carruth v. Comm’r Ala. Dep,t. of Corr., 93 F.4th 1338 (11th Cir. 2024)………..10, 16
Elliott v. State, 768 So.2d 422 (Ala.Crim.App.1999)……………………………………16
Evitts v. Lucey, 469 U.S. 387 (1985)………………………………………………………10
Ex parte, Carruth, 21 So.3d 770 (Ala. 2009)……………………………………………..16
Ford v. Georgia, 498 U.S. 411 (1991)……………………………………………………..15
Honea v. Raymond James Fin. Servs., Inc., 279 So. 3d 568 (Ala. 2018)…………….16
Picard v. Connor, 404 U.S. 270 (1971)……………………………………………………17
Roe v. Flores-Ortega, 528 U.S. 470 (2000)……………………………..13, 14, 17, 18, 19
Ross v. Moffitt, 417 U.S. 600 (1974)………………………………………………………10
State v. Carruth, 21 So.3d 764 (Ala.Crim.App. 2008)………………………………….16
State v. Martin, 56 So.2d 709 (Ala.Crim.App. 2009), aff’d, Ex parte Martin,
56 So. 3d 726 (Ala. 2010)…………………………………………………………..15
Walker v. Martin, 562 U.S. 307 (2011)……………………………………………..……14
Williams v. Taylor, 529 U.S. 361 (2000)…………………………………………………14
viii
Statutes:
Ala. Code §§ 13A-5-53(a)……………………………………………………………….11
Ala. Code §§ 13A-5-53(b)……………………………………………………………….11
Ala. Code §§ 13A-5-53(d)……………………………………………………………….11
Ala. Code § 15-12-22…………………………………………………………………….11
Rules:
Rule 2, Ala.R.App.P……………………………………………………………………15
Rule 39(a)(2), Ala.R.App.P.…………………………………………………………..11
Rule 2, Ala.R.App.P……………………………………………………………………15
Rule 32.1(f), Ala.R.Crim.P……………………………………………………………15
ix
PETITION FOR A WRIT OF CERTIORARI
Petitioner Michael David Carruth, an indigent prisoner sentenced to death in
Alabama, requests that the Court grant certiorari to review the judgment of the
United States Court of Appeals for the Eleventh Circuit.
OPINIONS BELOW
The United States Court of Appeals for the Eleventh Circuit’s opinion is
published and can be found at Carruth v. Comm’r Ala. Dep’t. of Corr., 93 F.4th 1338
(11th Cir. 2024) Pet. App. 1a. The United States District Court for the Middle
District of Alabama’s Final Judgment and contemporaneously issued memorandum
opinion can be found at Carruth v. Hamm, 2022 U.S. Dist. LEXIS 169587, 2022 WL
4357471 (M.D.Ala. 2022). Pet. App. a22. The United States District Court for the
Middle District of Alabama’s decision granting in part and denying in part a
certificate of appealability can be found at Carruth v. Hamm, 2022 U.S. Dist. LEXIS
203143, 2022 WL 17492261 (M.D.Ala. 2022). Pet. App. a19. The order of the United
States Court of Appeals for the Eleventh Circuit denying Carruth’s motion for panel
rehearing is unreported and is attached as Appendix M. Pet. App. a160.
JURISDICTION
On March 1, 2024, the United States Court of Appeals for the Eleventh Circuit
affirmed the United States District Court for the Middle District of Alabama’s denial
of Carruth’s petition for a writ of habeas corpus. Carruth v. Comm’r. Ala. Dep’t. of
Corr., 93 F.4th 1338 (11th Cir. 2024). Pet.App. 1a. Carruth timely filed a petition for
panel rehearing which was denied on April 8, 2024. Appendix M. Pet. App. a160.
1
This petition is now timely filed and this Court has jurisdiction to review this case
under 28 U.S.C. § 1254(1).
CONSTITUTIONAL & STATUTORY AND RULES PROVISIONS
The Sixth Amendment to the United States Constitution provides in
relevant part: “In all criminal prosecutions, the accused shall enjoy the right
to … the Assistance of Counsel for his defense.”
The Fourteenth Amendment to the United States Constitution provides in
relevant part: “No State shall . . . deprive any person of life, liberty or property,
without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.”
18 U.S.C. § 2254, provides in relevant part:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
Ala. Code §§ 13A-5-53, provides in relevant part:
(a) …[A]ny case in which the death penalty is imposed [is] …
subject to review by the Alabama Supreme Court….
(b) In determining whether death was the proper sentence in the
case the Alabama Court of Criminal Appeals, subject to review by the
Alabama Supreme Court….
2
(c) After performing the review specified in this section, the
Alabama Court of Criminal Appeals, subject to review by the Alabama
Supreme Court….
Ala. Code § 15-12-22(b) provides in relevant part:
If it appears that the indigent defendant desires to appeal and is
unable financially or otherwise to obtain the assistance of counsel on
appeal and the indigent defendant expresses the desire for assistance of
counsel, the trial court shall appoint counsel to represent and assist the
indigent defendant on appeal, through the indigent defense system for
such cases.
Rule 2(b), Ala.R.App.P provides in relevant part:
…[F]or good cause shown, an appellate court may suspend the
requirements or provisions of any of these rules in a particular case on
application of a party or on its own motion and may order proceedings
in accordance with its direction. … [T]he supreme court may extend the
time for filing a petition for certiorari in a criminal case in which the
death penalty was imposed as punishment.
Rule 39(a)(2), Ala.R.App.P. provides in relevant part:
When the Court of Criminal Appeals has affirmed a sentence
imposing the death penalty, counsel who represented the appellant on
the appeal to the Court of Criminal Appeals or successor counsel shall
prepare and file in the Supreme Court a petition for a writ of certiorari
for review of the decision of the Court of Criminal Appeals.
Rule 32.1(f), Ala.R.Crim.P. in effect at relevant times provided:
Subject to the limitations of Rule 32.2, any defendant who has
been convicted of a criminal offense may institute relief on the ground
that:
….
(f) The petitioner failed to appeal within the prescribed time and
that failure was without fault on petitioner's part.
3
STATEMENT OF THE CASE
State Court Trial
In April of 2002, a Russell County, Alabama grand jury indicted Michael David
Carruth on four counts of capital murder in the death of W.B.B., one count of
attempted murder of Forest Bowyer, one count of robbery in the first degree, and one
count of burglary in the first degree. (Doc. 1 21-1 at 94-96, Doc. 21-5 at 42-43, Doc. 2110 at 1364-65, Doc. 21-10 at 184-185, Doc. 21-8 at 13-14). On October 9, 2003, a jury
found Carruth guilty of all charges. (Doc. 21-25 at 143-144). “The murder was made
capital (1) because it was committed during the course of a kidnapping in the first
degree, see § 13A-5-40(a)(1), Ala.Code 1975; (2) because it was committed during the
course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; (3) because
it was committed during the course of a burglary in the first degree, see § 13A-540(a)(4), Ala. Code 1975; and (4) because [W.B.B.] was less than 14 years of age, see
§ 13A-5-40(a)(15), Ala. Code 1975.” Carruth v. State, 927 So. 2d 866, 868-869
(Ala.Crim.App. 2005). A penalty phase trial began the next day. Neither the State of
Alabama nor Carruth called any witnesses. (Doc. 21-25 at 143-144). The State of
Alabama and Carruth stipulated that Carruth had no significant history of prior
criminal activity. (Doc. 21-25 at 174). The jury returned a verdict in favor of a death
sentence on that same day. (Doc. 21-26 at 4.) On December 3, 2003, the state trial
judge sentenced Carruth to death on each of the capital murder charges and
below.
1 “Doc” citations are to the ECF document number as filed in the district court
4
consecutive terms of life imprisonment for each of the attempted murder, robbery,
and burglary charges. (Doc. 21-26 at 13-30).
State Court Direct Appeal
On August 26, 2005, the Alabama Court of Criminal Appeals affirmed
Carruth’s capital conviction and sentence of death and vacated Carruth’s convictions
and sentences for robbery and burglary as violative of double jeopardy. Carruth’s
rehearing application was denied on October 14, 2005. Carruth v. State, 927 So. 2d
866 (Ala.Crim.App. 2005). Pet.App. a111. Although required to do so, Carruth’s
lawyer failed to file a petition for a writ of certiorari with the Alabama Supreme
Court.
State Court Post Conviction
On October 26, 2006, Carruth filed a Rule 32, Ala.R.Crim.P. petition in the
Circuit Court of Russell County. (Doc. 21-27 at 8-91). Counsel was later appointed for
Carruth. (Doc. 21-27 at 95). On July 2, 2007, Carruth filed an amendment to the Rule
32 petition. (Doc. 21-27 at 154-165).
Carruth requested, among other things, leave to file an out-of-time petition for
a writ of certiorari in the Alabama Supreme Court. On August 2, 2007, the circuit
court, stating that “[t]o the extent it ha[d] jurisdiction,” “granted [Carruth]
permission to file an Out of Time Petition for Writ of Certiorari to the Alabama
Supreme Court” and reserved judgment on the remaining issues in the Rule 32
petition.” Pet. App. a119. The State of Alabama appealed that order. (Doc. 21-28 at
5
2). The circuit court stayed the proceedings pending resolution of that appeal. (Doc.
21-31 at 63).
In October of 2007, while the State of Alabama’s appeal was pending, Carruth
filed a motion with the Alabama Supreme Court seeking an extension of time for
filing a petition for a writ of certiorari. (Doc. 21-28 at 63-69). The motion, referencing
Rules 2 and 39, Ala.R.App.P., stated that it would be “in the best interest of justice
to require compliance by appellate counsel with the mandatory provisions of the
Alabama Rules of Appellate Procedure designed to afford due process rights to
individuals sentenced to death.” (Doc. 21-28 at 67). That motion was denied on
February 28, 2008. Pet. App. a121.
In briefing the out of time certiorari petition Rule 32.1(f), Ala.R.Crim.P. issue
in the Alabama Court of Criminal Appeals, Carruth, citing Strickland v. Washington,
466 U.S. 668 (1984) and Roe v. Flores-Ortega, 528 U.S. 470 (2000), argued that the
grant of relief was proper. (Doc. 21-28 at 46-59). The Alabama Court of Criminal
Appeals reversed the trial court’s order granting Carruth permission to file an out of
time petition for writ of certiorari on May 30, 2008 and denied rehearing on August
15, 2008. State v. Carruth, 21 So.3d 764 (Ala.Crim.App. 2008). Pet. App. a111.
Carruth petitioned the Alabama Supreme Court for review. (Doc. 21-28 at 136-185).
The petition stated in its introduction: “Counsel failed to provide notice to any court
or Mr. Carruth of his default of Mr. Carruth’s appeal,….” (Doc. 21-28 at 144). In his
brief in the Alabama Supreme Court, Carruth argued that allowing him to file an
out-of-time appeal would remedy a violation of his right to counsel under the Sixth,
6
Eighth and Fourteenth Amendments to the United States Constitution. (Doc. 21-29
at 4). He stated:
Appointed counsel abandoned his representation of Mr. Carruth without
prior notice to any court. More importantly, appointed counsel
abandoned Mr. Carruth without notice to Mr. Carruth and without
filing a petition for writ of certiorari. Such conduct clearly constitutes
deficient performance which prejudiced Mr. Carruth. Such actions
violated Mr. Carruth’s right to effective assistance of counsel before [the
Alabama Supreme Court] on direct appeal.
(Doc. 21-29 at 26).
Appointed counsel provided ineffective assistance before the
Court of Criminal Appeals by failing to complete his duties regarding
Carruth’s first appeal as of right. Appointed counsel’s representation
before the Court of Criminal Appeals did not end when he filed the brief.
Rather, counsel had a duty to inform Mr. Carruth when his appeal to
the Court of Criminal Appeals had been denied and to consult with him
about any further appeals. The failure to do so constituted ineffective
assistance of counsel in his representation of Mr. Carruth before the
Court of Criminal Appeals.
(Doc. 21-29 at 29)
In addition to the duty of appellate counsel to consult with Mr.
Carruth regarding a petition for certiorari, counsel at the Court of
Criminal Appeals had a duty to inform Mr. Carruth that the Court of
Criminal Appeals had denied rehearing.
(Doc. 21-29 at 28). Carruth cited Roe v. Flores-Ortega, 528 U.S. 470 (2000), as
authority. (Doc. 21-29 at 27-15). The Alabama Supreme Court later quashed a
previously issued writ, thus, denying Carruth relief. Ex parte Carruth, 21 So.3d 770
(Ala. 2009). Pet. App. a107.
On August 24, 2009, Carruth filed a petition for a writ of certiorari in this
Court. (Doc. 21-30 at 2-76). This Court denied the petition on November 30, 2009.
Carruth v. Alabama, 558 U.S. 1052 (2009). Pet. App. 105.
7
On February 21, 2012, the state circuit court dismissed several of Carruth’s
Rule 32 claims and ordered an evidentiary hearing on the remaining issues. Pet. App.
a151. After the evidentiary hearing, on December 26, 2012, the state circuit court
denied relief on the remaining claims in Carruth’s Rule 32 petition. Pet. App. a148.
The Alabama Court of Criminal Appeals affirmed the denial of Carruth’s Rule
32 petition and overruled an application for rehearing. Carruth v. State, 165 So.3d
627 (Ala.Crim.App. 2014) Pet. App. a125.
On October 17, 2014, the Alabama Supreme Court denied Carruth’s petition
for writ of certiorari. Pet. App, 123.
Federal Post Conviction
On October 23, 2014, Carruth petitioned the United States District Court for
the Middle District of Alabama for a writ of habeas corpus under 28 U.S.C, § 2254.
(Doc. 1). On May 15, 2015, Carruth amended his petition. (Doc. 34). On September
20, 2022, the district court denied Carruth’s amended petition, Carruth v. Hamm,
2022 U.S. Dist. LEXIS 169587, 2022 WL 4357471 (M.D. Ala. 2013). Pet. App. a22,
and granted a limited certificate of appealability. Carruth v. Hamm, 2022 U.S.Dist.
LEXIS 203143, 2022 WL 17492261 (M.D.Ala. 2022). Pet. App. a19. Carruth timely
appealed. (Docs. 52, 53).
Carruth argued on appeal, inter alia, that his appellate counsel had been
ineffective in not filing a petition for a writ of certiorari in the Alabama Supreme
Court and failing to notify him that the Alabama Court of Criminal Appeals had
overruled an application for rehearing and to advise him of further available
8
appellate options and that that issue was not procedurally barred. The Eleventh
Circuit affirmed on March 1, 2024. Carruth v. Comm’r Ala. Dept. of Corr. 93 F.4th
1338 (11th Cir. 2024). Pet. App. 1. The Eleventh Circuit’s opinion did not specifically
address whether an asserted procedural bar of Carruth’s claim that his counsel was
ineffective in failing to file a petition for a writ of certiorari on direct appeal with the
Alabama Supreme Court and failing to advise him of further appellate options was
firmly established and regularly followed. Carruth timely filed an application for
panel rehearing asserting that it was not and that the merits of the issue were fairly
presented in state court for exhaustion purposes. On April 8, 2024, the United States
Court of Appeals for the Eleventh Circuit denied the petition for rehearing. Carruth
v. Comm’r. Ala. Dep’t. of Corr., 94 F.4th 1338 (11th Cir. 2024). Pet. App. a1, a160.
REASONS FOR GRANTING THE WRIT
The writ should be granted because, contrary the Alabama state courts’
decisions, this Court’s opinions addressing when there is a right to counsel
on appeal and Alabama’s statutes and rules imposing upon appellate
counsel a duty to file a petition for a writ of certiorari after an adverse lower
appellate court decision in a death penalty cases warrant the conclusion
that the Constitution requires counsel in Alabama death penalty cases
through the filing of a petition for a writ of certiorari with the Alabama
Supreme Court.
The district court below stated that “Carruth's appellate counsel acted
unprofessionally and counter to the best interests of his client by failing to update his
address with the court; failing to inform, consult, or counsel Carruth when the
application for rehearing was unsuccessful; and failing to either file a petition for writ
of certiorari or ask the Alabama Supreme Court for more time to file the petition.”
9
Carruth v. Hamm, 2022 U.S. Dist. LEXIS 169587, 2022 WL 4357471 (M.D. Ala.
2013). Pet. App. a47.
The Eleventh Circuit concluded that counsel for Carruth “at the discretionary
appeal level was not constitutionally required.” Carruth v. Comm’r Ala. Dep’t. of
Corr., 93 F.4th 1338, 1357 (11th Cir. 2024). Pet. App. a15. But, an examination of
this Court’s opinions addressing when there is a right to counsel on appeal and
Alabama’s statutes and rules imposing upon appellate counsel a duty to file a petition
for a writ of certiorari after an adverse lower appellate court decision in a death
penalty cases warrants a conclusion that Carruth’s constitutional right to counsel
was denied.
This Court has held that it is constitutionally permissible not to require
counsel for a discretionary certiorari petition. Ross v. Moffitt, 417 U.S. 600, 617-618
(1974). But, it stated in Ross v. Moffit that it did “not mean by this opinion to in any
way discourage those States which have, as a matter of legislative choice, made
counsel available to convicted defendants at all stages of judicial review.” Id. at 618.
And, it has said that “when a State opts to act in a field where its action has
significant discretionary elements, it must nonetheless act in accord with the dictates
of the Constitution -- and, in particular, in accord with the Due Process Clause,”
kicking in the right to effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387,
401 (1985). Here, Alabama opted to act to the point of requiring counsel to file a
petition for a writ of certiorari with the Alabama Supreme Court in death penalty
cases.
10
Ala. Code §§ 13A-5-53(a), (b) and (d), provide that death penalty cases are
"subject to review by the Alabama Supreme Court.” See also Ala.R.App.P. 39(a)(2).
Ala. Code § 15-12-22 directs that for indigent defendants, "the trial court shall
appoint counsel to represent and assist the defendant on appeal." Under Alabama
law, Carruth, an indigent, was granted appointed counsel for his direct appeal. Rule
39(a)(2), Ala.R.App.P. provides that in every death penalty case counsel must, if the
sentence is affirmed on appeal, file a petition for writ of certiorari in Alabama
Supreme Court:
When the Court of Criminal Appeals has affirmed a sentence imposing
the death penalty, counsel who represented the appellant on the appeal
to the Court of Criminal Appeals or successor counsel shall prepare and
file in the Supreme Court a petition for a writ of certiorari for review of
the decision of the Court of Criminal Appeals.
This language is mandatory and unequivocal. While the Alabama Supreme Court
may have discretion to deny the petition, appellate counsel does not have any
discretion not to file it.
As to Carruth’s case, the district court stated:
On October 14, 2005, the Court of Criminal Appeals denied the
application for rehearing. (Doc. # 21-26 at 269.) Under Rule 39(c)(2) of
the Alabama Rules of Appellate Procedure, Carruth then had fourteen
days to file a petition for writ of certiorari in the Alabama Supreme
Court. No petition was filed. (Doc. # 21-28 at 148.) The certificate of
judgment was issued on November 2, 2005. (Doc. # 42 at 20.) Ala. R.
App. P. 41(a)(1).
Carruth alleges that no petition was filed because his appellate
counsel had changed his address a second time and did not inform either
the Court of Criminal Appeals or Carruth. (Doc. # 34 at 7-8, ¶ 27.) While
the state generally does not dispute that Carruth's appellate counsel
was at fault for the failure to file a petition for writ of certiorari, the
exact details are once again somewhat muddied. (Doc. # 42 at 20 n.27.)
11
On January 26, 2006, Carruth's appellate counsel filed a letter in
the Court of Criminal Appeals, saying:
Please resend me a copy of the Order denying my
Application for Rehearing in this case. I have not received
this Order and I just heard from an Attorney who has
spoken to my client and has noted that he has not received
any word either. Please resend this Order Denying the
Application so that I may petition the Supreme Court for a
Writ Of Cert. Please note my address has changed and that
is perhaps the reason I did not receive any kind on Please
resend me a copy of the Order denying my Application for
Rehearing on this case. My new address is: [address on
Richard Arrington, Jr., Boulevard South in Birmingham,
Alabama]. (Doc. # 47-1 at 89.)
Then, on June 6, 2006, Carruth's appellate counsel filed a motion
in the Alabama Supreme Court styled as a "Motion for Ruling on
Petition for Writ of Certiorari." (Doc. # 47-1 at 90.) The motion alleged
that a petition for writ of certiorari had been filed "on February 16,
2006," and requested a prompt ruling on the petition. But Carruth's
appellate
counsel
once
again
had
either
misunderstood,
misremembered, or misrepresented the true state of the case file. The
clerk of the Alabama Supreme Court responded to Carruth's appellate
counsel, informing him that there was no record of any such petition
having been filed. (Doc. # 42 at 20.)
Carruth's appellate counsel did not file a motion for extension of
time or make any other effort to obtain review of Carruth's claims in the
Alabama Supreme Court. Nor, apparently, did he inform his client that
any of this had taken place. Carruth alleges that he finally learned of
the demise of his appeal when he received a letter from counsel for the
state dated October 3, 2006, informing him that he had until November
2, 2006, to file a Rule 32 petition. (Doc. # 34 at 8, P 27; Doc. # 42 at 20.)
Counsel for the state also sent a copy of the letter to a nonprofit group
that frequently provides advocacy for death row inmates. The nonprofit
helped get Carruth's Rule 32 process started. (Doc. # 42 at 20-21.)
Carruth v. Hamm, 2022 U.S. Dist. LEXIS 169587, 2022 WL 4357471 (M.D. Ala.
2013). Pet. App. a48.
12
In Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), this Court reiterated that it
had
long held that a lawyer who disregards specific instructions from the
defendant to file a notice of appeal acts in a manner that is
professionally unreasonable. See Rodriquez v. United States, 395 U.S.
327 (1969); cf. Peguero v. United States, 526 U.S. 23, 28 (1999) ("When
counsel fails to file a requested appeal, a defendant is entitled to [a new]
appeal without showing that his appeal would likely have had merit").
This is so because a defendant who instructs counsel to initiate an
appeal reasonably relies upon counsel to file the necessary notice.
Counsel's failure to do so cannot be considered a strategic decision; filing
a notice of appeal is a purely ministerial task, and the failure to file
reflects inattention to the defendant's wishes.
It went on to recognize a constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that a rational defendant
would want to appeal (for example, because there are nonfrivolous grounds for
appeal), or (2) that this particular defendant reasonably demonstrated to trial counsel
that he was interested in appealing. Id. at 480.
Any rational defendant facing a death penalty would want to go as far as
possible on direct appeal. There is no indication that Carruth indicated otherwise to
his appellate counsel. And while there is no indication that Carruth specifically
instructed his counsel to file a petition for a writ of certiorari with the Alabama
Supreme Court, Alabama law and rules required his counsel to do so. No defendant
facing the death penalty should have to request such. Further, even absent that
requirement of counsel, under Roe v. Flores-Ortega, Carruth's counsel, at a minimum,
had a duty to consult with Carruth about his further options for review.
13
Counsel's failure to even notify Carruth that the Alabama Court of Criminal
Appeals had denied rehearing or let him know about further direct appeal options
prevented Carruth from pursuing his appeal in the Alabama Supreme Court. This
was presumptively prejudicial, or alternatively, actually prejudicial to Carruth. Roe
v. Flores-Ortega, 528 U.S. at 483 (" [W]e cannot accord any 'presumption of reliability'
. . . to judicial proceedings that never took place.").
While this Court has not previously addressed whether the Alabama laws and
rules create a right to counsel beyond the Alabama Court of Criminal Appeals, it flows
from the obligations of counsel set out in Roe v. Flores-Ortega that there are
obligations beyond that in Alabama death penalty cases and that it was unreasonable
for the Alabama courts not to hold so. See, Williams v. Taylor, 529 U.S. 361, 407-408
(2000)(“unreasonable application” when state court unreasonably refuses to extend
principle to a new context). This case presents an occasion for an explicit statement
on the extent of counsel appellate duties in death penalty cases coming out of
Alabama.
The asserted procedural bar of Carruth’s claim that his counsel was
ineffective in failing to file a petition for a writ of certiorari on direct appeal
with the Alabama Supreme Court and failing to advise him of further
appellate options was not firmly established and regularly followed and the
claim was fairly presented in state court for exhaustion purposes.
Procedure not firmly established and regularly followed
[O]nly a "firmly established and regularly followed state practice" may
be interposed by a State to prevent subsequent review by this Court of
a federal constitutional claim. [James v. Kentucky, 466 U.S. 341,] 348351 [(1984)]; see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964)
14
(state procedural rules "not strictly or regularly followed" may not bar
our review); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964)
(procedural rule no bar to our review when state court had never applied
it with the "pointless severity shown here").
Ford v. Georgia, 498 U.S. 411, 423-424 (1991).
The Eleventh Circuit’s opinion in this case did not address whether an asserted
procedural bar of Carruth’s claim that his counsel was ineffective in failing to file a
petition for a writ of certiorari on direct appeal with the Alabama Supreme Court and
failing to advise him of further appellate options was firmly established and regularly
followed. A state procedural rule is adequate to bar federal review if the rule is firmly
established and regularly followed. Walker v. Martin, 562 U.S. 307, 316 (2011); Ford
v. Georgia, 498 U.S. at 423-25. But, a state procedural rule is not “firmly established”
if the rule is novel or newly announced. Ford v. Georgia, 498 U.S. at 423-24.
Here, a required use of Rule 2, Ala.R.App.P. rather than Rule 32.1(f),
Ala.R.Crim.P. to get permission to pursue a petition for a writ of certiorari in the
Alabama Supreme Court was not firmly established or regularly followed. Carruth’s
state circuit court court’s statement “[t]o the extent it ha[d] jurisdiction,” in its order
granting the appeal on that issue in the Rule 32 proceeding indicates the state trial
court’s own uncertainty about it. And, apparently Carruth’s state circuit court was
not the only state court viewing Rule 32.1(f), Ala.R.Crim.P. as a vehicle for out of time
certiorari petition filings in death penalty cases. See, State v. Martin, 56 So.2d 709
(Ala.Crim.App. 2009), aff’d, Ex parte Martin, 56 So. 3d 726 (Ala. 2010)(trial court
grant of Rule 32.1(f), Ala.R.Crim.P. petition seeking an out of time application for
rehearing and certiorari petition in capital case reversed). Here, the Alabama Court
15
of Criminal Appeals, in holding that Rule 32.1(f), Ala.R.Crim.P. did not apply to
requests for out of time applications for rehearings, cited only Elliott v. State, 768
So.2d 422 (Ala.Crim.App.1999), a non-capital case not carrying the same mandated
post adverse appellate decision duties of appellate counsel as in capital cases. State
v. Carruth, 21 So.3d 764 (Ala.Crim.App. 2008). Pet.App. 116. The Alabama Supreme
Court did not cite any cases at all for precedent. Ex parte, Carruth, 21 So.3d 770 (Ala.
2009). Pet. App. 107. With this, at best, scant history, the conclusion should be that
this choice of rules issue was not firmly established or regularly followed.
The issue was fairly presented in state court
The Eleventh Circuit’s opinion states as a ground of preclusion that “[Carruth]
did not raise an independent issue of ineffective assistance of appellate counsel in the
second Rule 32 appeal.” Carruth v. Comm’r. Ala. Dep’t. of Corr., 93 F.4th at 1356. Pet.
App. a14. Carruth raised that issue on his first trip up on post conviction review.
Having been rejected on a procedural ground not firmly established and regularly
followed, it would justifiably be thought to be considered the law of case which
obviated the need for Carruth to make the same argument again. See, Honea v.
Raymond James Fin. Servs., Inc., 279 So. 3d 568, 570-71 (Ala. 2018) ("An appellate
court's decision is final as to the matters before it, becomes the law of the case, and
must be executed according to the mandate. Ex parte Edwards, 727 So.2d 792, 794
(Ala. 1998). Generally, a lower court 'exceeds its authority' by addressing issues
already decided by an appellate court's decision in that case. Lynch v. State, 587
So.2d 306, 308 (Ala. 1991).”)
16
To exhaust a claim for federal review, the claim must have been presented to
the state courts to give them an "opportunity to apply controlling legal principles to
the facts bearing upon (his) constitutional claim." Picard v. Connor, 404 U.S. 270,
277 (1971). Although the route here was circuitous, Carruth did so.
He argued among other things in his Rule 32 petition that he was denied the
effective assistance of counsel under the United States Constitution because:
Counsel's failure to notify Mr. Carruth or the court . . . about his change
of address, his failure to notify Mr. Carruth of the denial of his
application for rehearing, his failure to consult with Mr. Carruth about
the appeal, and his failure to either file a petition or notify petitioner
that he would not file a petition with the Alabama Supreme Court and
that Mr. Carruth needed to file a Petition on his own.
(Doc. 21-27 at 20-21)
On the first trip up in state post conviction, Carruth argued in his brief in the
Alabama Court of Criminal Appeals, that his appellate counsel’s failure to file a
petition for a writ of certiorari in Carruth’s direct appeal amounted to ineffective
assistance of counsel. (Doc. 21-28 at 52, 55) and cited Roe v. Flores-Ortega as
authority for the argument. (Doc. 21-28 at 55-57). In connection with an application
for rehearing in the Alabama Court of Criminal Appeals, Carruth argued he had
ineffective assistance of appellate counsel because his appointed counsel “failed to
notify [him] that his direct appeal had been defaulted or attempt to withdraw from
representation”, (Doc. 21-28 at 101), “abandoned [him] without timely notice to
[him]”, (Doc. 21-28 at 121-122), “never notified [him] that he had failed to file a
petition for certiorari in the Alabama Supreme Court”, (Doc. 21-28 at 123), and “never
notified him or any court that he had abandoned [his] appeals….”, (Doc. 21-28 at 12617
127) In connection with a petition for a writ of certiorari in the Alabama Supreme
Court, Carruth urged as a ground for granting the writ that the default by Carruth’s
appellate counsel violated Carruth’s rights under the Sixth, Eighth, and Fourteenth
Amendments, (Doc. 21-28 at 137), and went on to state:
Appointed counsel provided ineffective assistance before the Court of
Criminal Appeals by failing to complete his duties regarding Mr.
Carruth’s first appeal as of right. Appointed counsel’s representation
before the Court of Criminal Appeals did not end when he filed the brief.
Rather, he had a duty to inform Mr. Carruth when the appeal to the
Court of Criminal Appeals had been denied and to consult with him
about any further appeals. The failure to do so constituted ineffective
assistance of counsel in the representation of Mr. Carruth before the
Court of Criminal Appeals.
(Doc. 21-28 at 161), and cited Roe v. Flores-Ortega. (Doc. 21-28 at 162). In his brief in
the Alabama Supreme Court, Carruth argued that allowing him an out of time
petition for a writ of certiorari would remedy a violation of his right to counsel under
the Sixth, Eighth, and Fourteenth Amendments.
Appointed counsel abandoned his representation of Mr. Carruth
without prior notice to any court. More importantly, appointed counsel
abandoned Mr. Carruth without notice to Mr. Carruth and without
filing a petition for writ of certiorari. Such conduct clearly constitutes
deficient performance by which Mr. Carruth was prejudiced. Such
actions violated Mr. Carruth’s right to effective assistance of counsel….
(Doc. 21-29 at 25-26). And, again, Carruth argued
Appointed counsel provided ineffective assistance before the
Court of Criminal Appeals by failing to complete his duties regarding
Mr. Carruth’s first appeal as of right. Appointed counsel’s
representation before the Court of Criminal Appeals did not end when
he filed the brief. Rather, he had a duty to inform Mr. Carruth when the
appeal to the Court of Criminal Appeals had been denied and to consult
with him about any further appeals. The failure to do so constituted
ineffective assistance of counsel in the representation of Mr. Carruth
before the Court of Criminal Appeals.
18
(Doc. 21-29 at 26). Carruth again cited Roe v. Flores-Ortega. (Doc. 21-29 at 27).
This was sufficient to let the Alabama courts know the substance and grounds
of his complaint about the non-filing of a petition for a certiorari and absence of any
handover.
CONCLUSION
By granting review, this Court could settle the question of whether a state’s
mandate of appellate counsel’s duties beyond the first decision on an appeal of right
by statute or rule, such as Alabama does in death penalty cases, requires effective
counsel beyond that first decision. For that reason, this Court should grant review.
Respectfully submitted,
/s/ Thomas M. Goggans
Counsel of Record
Thomas M. Goggans
Attorney at Law
2030 East Second Street
Montgomery AL 36106
334.834.2511
t.goggans@tgoggans.net
Counsel for Petitioner
19
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.