On the night of February 19, 1986, in the Sunrise Apartments in Talladega, Alabama, neighbors saw Sherri Weathers struggling with a man, and one heard him say, “Come on and you will be with your mother and your brother.” Weathers and her sons, Chad, five, and Joey, four, were killed that night. So was Linda Odom, who had eaten lunch that day with the man in a neighbor’s apartment. The man was Danial Lee Siebert, a drifter who had come to Talladega after a teacher at the Alabama Institute for the Deaf and Blind gave him a ride in Arizona and offered him work at the school. He was later convicted also of murdering Linda Jarman, a deaf woman who lived in Talladega, in the course of a robbery.
The fourteen opinions collected here run from his direct appeals in 1989 to a ruling two months before he died. The Alabama Court of Criminal Appeals affirmed both of his death sentences in April 1989, one for the murder of Linda Jarman and one, after the case was moved to Lee County, for the murders of Sherri Weathers and her sons, and the Supreme Court of Alabama affirmed both. The postconviction opinions of 1999 and 2000 rejected his petitions in the state courts. From 2003 the Eleventh Circuit took over, and its opinions are mostly about the calendar: whether his federal habeas petitions had been filed in time.
The court first held that his state petition had been properly filed, so his federal clock had not run; the United States Supreme Court reversed that in 2007, and in February 2008 the Eleventh Circuit, on remand, affirmed the dismissal of his petition as untimely. The other late opinions concern his challenge to Alabama’s lethal injection procedure as it would be applied to a man diagnosed in July 2007 with hepatitis C and pancreatic cancer. The court stayed his execution in October 2007 so that claim could be heard. Siebert died of cancer at Holman Correctional Facility on April 22, 2008.
The facts in the 1989 opinions are the State’s evidence as the juries accepted it, and the other killings he was charged with or claimed, in California and New Jersey among other places, appear only as background. Because the federal courts held his petitions untimely, no federal court ever reached the merits of his claims, and the opinions say so. His name is spelled Danial in the early state opinions and Daniel in most of the later ones; both refer to the same man.
These are public records of the Alabama courts and the Eleventh Circuit. Linda Jarman, Linda Odom and Sherri, Chad and Joey Weathers keep their names, as do the police, social workers, doctors, lawyers, judges and prison officials. We have given initials to the teacher who brought him to Talladega, to Linda Odom’s boyfriend, to neighbors and residents of the apartments who testified, to a woman whose testimony the defense said should have been offered, and to two jurors whose seating was challenged.
The Caselaw Access Project text is printed complete and in date order. The 1989 opinion on the Weathers case dates the night of the killings to February 19, 1989, where the rest of the record says 1986, and the capture spells one appointed lawyer’s title “Courh-Appointed”; both are left as printed. Several of the 2007 and 2008 entries are short orders on stays and rehearing, reproduced in full.
Danial Lee SIEBERT, a/k/a Danny L. Siebert, a/k/a Danial Spence v. STATE.
7 Div. 851.
Court of Criminal Appeals of Alabama.
April 14, 1989.
As Corrected on Denial of Rehearing Oct. 27, 1989.
George N. Sims, Rod Giddens and William J. Willingham, Talladega, for appellant.
Don Siegelman, Atty. Gen., and Mary Ellen Forehand and William D. Little, Asst. Attys. Gen., for appellee.
[OPINION BY McMILLAN, Judge. type=majority]
McMILLAN, Judge.
The appellant was convicted of the capital offense of murder during a robbery in the first degree, in violation of § 13A-5-40(a)(2), Code of Alabama (1975). Following a sentencing hearing, the jury recommended a sentence of death by vote of 12 to 0. The trial court ordered a presentence investigation, and, after complying with § 13A-5-47, Code of Alabama (1975), the trial court sentenced the appellant to death by electrocution.
The appellant, who often worked as a free lance artist, was hitchhiking in the vicinity of Tucson, Arizona, when he was given a ride by D.H. H. told the appellant that he was working for the E.H. Gentry School in Talladega, a state facility for the deaf. It was then arranged that the appellant would be employed at the facility. Subsequently, the appellant moved to Talladega to work for the school in return for free meals. He lived with H. until the appellant began seeing a deaf woman who was a student at the facility. H. discussed the possible repercussions of the appellant’s relationship, as an employee of the facility, with the student and decided to move out of their apartment; however, the appellant remained a resident.
On February 19, 1986, the appellant ate lunch at the apartment of a neighbor, S.L., with L. and L.’s girl friend, Linda Odom. After lunch, L. left for approximately an hour to get his car, and when he returned to his apartment, neither Linda Odom nor the appellant was there. L. knocked on the appellant’s door and, approximately 15 minutes later, the appellant came to the door. He then accompanied L. to look for Linda Odom. Thereafter, the appellant asked L. for a ride to the apartment of his girl friend, Sherry Weathers. After L. dropped him off, the appellant spent some time at his girl friend’s apartment, where the victim, Linda Jarman, was apparently also present. Linda Jarman, who was also deaf, was a teacher at the E.H. Gentry School and knew the appellant through her work there and because she lived next door to his girl friend, Sherry Weathers.
Linda Jarman owned a yellow 1973 Buick automobile, which the appellant borrowed with her permission. He then drove back to his apartment, where S.L. observed him carry large green trash bags downstairs. The appellant told L. that he had borrowed his girl friend’s automobile and was returning some of her “stuff” because they had had a fight. The appellant returned to Sherry Weathers’s apartment, where he spent some time. Upon leaving that apartment, he walked next door to Linda Jarman’s apartment. He spent an hour or two there, drinking wine with her. They then went into the bedroom, partially clothed, and lay down upon the bed, where he murdered her by strangling her. He then took her stereo and her car and fled Talladega. Approximately 13 days later, Linda Jarman’s automobile was found with a flat tire, abandoned on the side of a highway in Kentucky. A camp site was discovered off the highway and in the vicinity of the abandoned automobile. Evidence linking the appellant to the site was also found. He was thereafter apprehended in Tennessee.
During the week-long trial, the State called or recalled over 40 witnesses and introduced 147 exhibits. The appellant had given a statement implicating himself in several murders; the State introduced that portion of the statement dealing with the murder of Linda Jarman.
I
The appellant argues that the trial court erred in overruling his motion for funds for appointment of an expert to assist in the preparation of his motion for change of venue. While the instant case concerns the appellant’s charge of the capital murder of Linda Jarman, he was also charged with the murders of four other people in the city of Talladega, two of the four being children. The appellant argues that because of the nature of the offenses, the extensive publicity surrounding the case, and the fact that he was indigent, he should have been allowed the funds which he requested from the court to hire an expert. The appellant further submits that the trial court erred in denying his request to allow the venire to fill out a questionnaire anonymously, because, the appellant argues, the venire would have answered questions more candidly in private.
In Duren v. State, 507 So.2d 111 (Ala.Cr.App.1986), affirmed, 507 So.2d 121 (Ala.1987), cert. denied, Duren v. Alabama, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987), the defendant argued that he was denied due process of law because the State refused to provide him with reasonable funds to employ experts, among them a polling expert to aid in the presentation of a motion for change of venue and a motion for individual questioning of jurors. This court held that the denial of funds to employ such an expert was proper, id., at 119, citing Ex parte Grayson, 479 So.2d 76, 80 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), wherein the Alabama Supreme Court wrote:
“Did the statutory limit on state-provided funds for expenses prevent defendant from proving actual prejudice in the community at large, and thus cause him to lose his request for change of venue?
“ ‘The proper manner for ascertaining whether adverse publicity may have biased the prospective jurors is through the voir dire examination,’ Anderson v. State, 362 So.2d 1296, 1299 (Ala.Crim.App.1978), not through extensive and expensive surveys. It costs nothing to question the prospective jurors; thus the limit on available funds cannot be said to have prevented defendant from showing actual prejudice of the jurors.”
The record indicates that the potential jurors were questioned in three panels, the first consisting of 22 jurors. Although the record does not state the number of jurors on the next two panels, assuming the panels were of equal size, there were 66 people on the venire. Twenty-one of these veniremen stated that they had heard of the case. Three venire members, who indicated that they believed they would be unable to give the defendant a fair trial because of preconceived notions of guilt, were excused for cause. All other potential jurors who indicated that they had previously heard of the case stated that they could set aside any preconceived feelings and give the appellant a fair trial according to the evidence and the trial court’s instructions. Furthermore, during a discussion between defense counsel and prosecutor at the close of the motion for change of venue, the attorneys acknowledged that all potential jury members who had stated that they had read, seen, or heard anything about the case were all eventually struck from the jury.
Newspaper articles, as well as videotapes of newscasts, concerning this case, were introduced into evidence at the motion for change of venue. We have reviewed these exhibits and find that they are factual accounts of the ease and contain no prejudicial or inflammatory material. Police officials testified that news conferences were held to divulge the progress of the investigation to the press, but that no evidence from the case was ever related.
The defense lawyers presented evidence of the amount of coverage which the case received. They also thoroughly examined the potential jurors during the voir dire. From the evidence presented, there is no indication that a polling expert could have helped the appellant on this motion, nor is there any indication of abuse of discretion by the trial court in denying the appellant’s motion for change of venue. “The standard of fairness does not require jurors to be totally ignorant of the facts and issues involved. Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 2035-2036, 44 L.Ed.2d 589 (1975).” Ex parte Grayson, supra.
“[T]he fact that even a majority of the prospective jurors had preconceived notions of the guilt of the accused does not require a change of venue where there is evidence that the jurors would be able to lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Callahan v. State, 471 So.2d 447, 452 (Ala.Cr.App. 1983), reversed on other grounds, Ex parte Callahan, 471 So.2d 463 (Ala. 1985). ‘The relevant question is not whether the community remembered the case, but whether the jurors at [the accused’s] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.’ Patton v. Yount, 467 U.S. 1025; 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).
“The trial court’s findings of impartiality should be overturned only for ‘manifest error.’ Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).”
Fortenberry v. State, 545 So.2d 129 (Ala. Cr.App.1988). We also find no evidence of an inherently prejudicial climate that would prevent the appellant from receiving a fair and impartial trial. Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983).
Furthermore, while the evidence of press coverage submitted by the appellant contained only factual reports of the progress of the investigation and the announcement of the upcoming trial, the majority of the articles were released between the time of the crime in February 1986 and the appellant’s arrest in September 1986. The trial did not begin until March 1987. “ ‘[T]he passage of time cannot be ignored as a factor in bringing objectivity to trial.’ ” Whisenhant v. State, 555 So.2d 219 (Ala. Cr.App.1988), quoting Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert, denied, 287 Ala. 729, 254 So.2d 443 (1971). See also Murphy v. Florida, 421 U.S. 794, 802, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975).
Error did not result from the trial court’s denial of the appellant’s motion for funds for an expert. The appellant’s status as an indigent does not require the State to provide him with a polling expert. The Alabama Supreme Court wrote the following concerning the United States Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
“[Tjhere is nothing contained in the Ake decision to suggest that the United States Supreme Court was addressing anything other than psychiatrists and the insanity defense. Certainly, that decision cannot be broadly interpreted to require a State to provide experts of any category of a defendant’s own chosing to assist him in preparing whatever defenses he chooses. We have been cited to no other authority requiring such appointments.” Ex parte Grayson, 479 So.2d at 82.
Moreover, this court in Duren v. State, supra, noted that, even if the principles of Ake apply to anything other than psychiatrists and the insanity defense, the trial court did not commit error in denying that defendant’s motion for funds to employ experts. Likewise, because the voir dire examination disclosed little prejudicial influence of pre-trial publicity, the appellant in the present case has not shown a need for such an expert, and the trial court did not commit error under Ake.
Last, the trial court did not err in failing to allow the appellant to have the venire anonymously fill out a questionnaire. The appellant was allowed to ask any and all questions contained in the questionnaire. The method of qualifying a jury on voir dire is a matter largely vested in the discretion of the trial court. Seals v. State, 282 Ala. 586, 213 So.2d 645, 657-58 (1968); United States v. Hurley, 746 F.2d 725 (11th Cir.1984). See also Beecher v. State, 288 Ala. 1, 256 So.2d 154, 164 (1971), reversed on other grounds, Beecher v. Alabama, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972) (“[t]he defendant was not entitled to examine each prospective juror outside the presence of the other jurors”).
II
The appellant argues that the trial court erred in overruling his motion for change of venue. However, the appellant has the burden of showing to the reasonable satisfaction of the trial court that a fair and impartial jury cannot be had and that an unbiased verdict cannot be reasonably expected. Anderson v. State, 362 So.2d 1296, 1298 (Ala.Cr.App.1978).
“Except in the situation where there is a showing of ‘inherently prejudicial publicity which has so saturated the community, as to have a probable impact upon the prospective jurors’, the trial court’s primary responsibility in dealing with allegedly prejudicial pre-trial publicity is whether, as a result of such publicity, it is reasonably unlikely that the defendant can secure a fair and impartial trial.”
Anderson v. State, supra, at 1298-99, and cases cited therein.
As noted in the previous issue, neither the voir dire of the venire nor the evidence of the media coverage of the case indicates that the trial court abused its discretion in denying the motion for change of venue. “In reviewing the evidence presented in this cause, we find that the appellant did present evidence of news media and widespread publicity of this matter. However, we find no evidence of an inherently prejudicial climate that would prevent this appellant from receiving a ‘fair and impartial trial.’ ” Whisenhant v. State, 555 So.2d 219 (Ala.Cr.App.1988).
III
The appellant argues that the trial court erred in admitting the appellant’s statement into evidence because the Miranda warning given the appellant was improperly worded. Specifically, the appellant argues that because the detective who informed the appellant of his Miranda rights prior to his making his statement stated that “anything you say can be used against you in court”, instead of “anything you say can and will be used against you,” his confession was inadmissible.
The record indicates that the appellant, upon his arrest, was informed of his rights by use of a Miranda card, kept by Captain Hurst of the Talladega Police Department, which used the “can and will be used against you” language. Approximately 30 minutes later, upon his arrival at the Humphreys County, Tennessee, jail, the appellant was again advised of his rights, through the use of a form supplied by the Humphreys County sheriff. That form stated:
“You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one. And if you decide to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”
This difference in wording, between “anything you say can and will be against you in a court of law” and “anything you say can be used against you in court”, does not render the appellant’s confession inadmissible. In California v. Prysock, 453 U.S. 355, 359-360, 101 S.Ct. 2806, 2809-2810, 69 L.Ed.2d 696 (1981), the United States Supreme Court stated:
“This Court has never indicated that the ‘rigidity’ of Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] extends to the precise formulation of the warnings given a criminal defendant. See e.g., United States v. Lamia, 429 F.2d 373, 375-376 (CA. 2), cert, denied, 400 U.S. 907 [91 S.Ct. 150, 27' L.Ed.2d 146] (1970). This court and others have stressed as one virtue of Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into the actual voluntariness of the admissions of the accused. See Fare v. Michael C, 442 U.S. [707], at 718 [99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979)]; Harryman v. Estelle, supra [616 F.2d 870 (5th Cir.1980)]. Nothing in these observations suggests any desirable rigidity in the form of the required warnings.
“Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that ‘[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by defendant.’ 384 U.S., at 476 [86 S.Ct., at 1629] (emphasis supplied). See also id., at 479 [86 S.Ct., at 1630]. Just last Term in considering when Miranda applied we noted that the decision announced procedural safeguards including ‘the now familiar Miranda warnings ... or their equivalent.’ Rhode Island v. Innis, 446 U.S. 291, 297 [100 S.Ct. 1682, 1688, 64 L.Ed.2d 297] (1980) (emphasis supplied).”
This court has followed the language in California v. Prysock, supra, in holding that Miranda does not require specific language concerning the constitutional rights protected by Miranda. See Jones v. State, 456 So.2d 366 (Ala.Cr.App.1983), affirmed, 456 So.2d 380 (Ala.1984), cert, denied, Jones v. Alabama, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985).
“Reviewing the language used to inform the appellant herein of his right to appointed counsel, we find, as did the court in Prysock, supra, that ‘[t]his is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning ... or in which the offer of an appointed attorney was associated with a future time in court_’ Prysock, [453 U.S.] at 361, 101 S.Ct. at 2810 (Citations omitted.)”
Jones v. State, supra, at 373.
The appellant also asserts that his statement should not have been allowed into evidence because it was involuntary, as it was conditioned on the detective’s promise that the appellant would not be asked certain questions. Specifically, he submits that the detective told him he would not ask questions concerning “details.” Captain Hurst, of the Talladega Police Department, testified that when he spoke to the appellant, while still in Tennessee, the appellant stated that he would give Captain Hurst an admission of guilt concerning the homicides at that time, but that he would not go into details until he got back to Alabama. Captain Hurst further testified that he told the appellant that such an arrangement would be fine. The appellant argues that this arrangement constituted a “promise” which would make his statement involuntary. However, this arrangement was not a promise made by Captain Hurst in order to induce the appellant to give a statement, but was rather a condition set by the appellant, which Captain Hurst accepted.
“The test for voluntariness is whether, in light of the totality of the circumstances, the government obtained a confession by coercion or improper inducement. The factual inquiry into voluntariness focuses on the conduct of the law enforcement officials.” “Project: Fourteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1983-84,” 73 Geo.L.J 382-83 (1984). In Townsend, v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963), the United States Supreme Court stated that “[njumerous decisions of this Court have established the standards governing the admissibility of confessions into evidence. If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced.” The types of promises which may make a defendant’s statement involuntary are, e.g., promises of leniency, promises to bring the defendant's cooperation to the attention of the prosecutor, the disclosure of incriminating evidence to the accused, and silence in response to the defendant’s offer to talk if his statement will not be used against him. 73 Geo.L.J. at 383-84. Furthermore, a statement “is not rendered involuntary by a promise or benefit that was solicited freely by the defendant himself.” Rowe v. State, 421 So.2d 1352, 1355 (Ala.Cr.App. 1982), citing Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978).
Captain Hurst testified that neither he nor anyone in his presence made any threats, promises, inducements, offers of reward, or remuneration to the appellant in order to obtain a statement. The appellant’s confession was not the product of a direct or implied promise. The conditions established by the appellant for giving his confession did not induce his statement. The record indicates that, during the statement, when Captain Hurst asked a question which the appellant thought asked for details, Captain Hurst withdrew the question and the appellant completed his statement. The trial court properly admitted the offered portions of the appellant’s statement into evidence.
IV
The appellant argues that the trial court erred in overruling his motion to exclude the State’s evidence, because, he argues, that the State failed to prove the element of robbery in the first degree. The appellant argues that the evidence failed to prove that he committed the murder in order to take the victim’s automobile; and failed to prove that he committed robbery, because, he says, the evidence showed that the victim had allowed the appellant to borrow her automobile prior to her death. Thus, the appellant argues that he did not intend to commit robbery; that he did not commit the murder in order to commit the robbery; and, because he had borrowed the victim’s automobile, he says, he did not commit robbery.
Robbery in the first degree is defined by § 13A-8-41, Code of Alabama (1975):
“(a) A person commits the crime of robbery in the first degree if he violates § 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument or
“(2) Causes serious physical injury to another.”
Section 13A-8-43, Code of Alabama (1975), defines robbery in the third degree as follows:
“(a) A person commits the crime of robbery in the third degree if in the course of commiting a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”
Theft of property is defined by § 13A-8-2, Code of Alabama (1975), as follows:
“A person commits the crime of theft of property if he:
“(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
“(2) Knowingly obtains by deception control over the property of another with intent to deprive the owner of his property.”
(Emphasis added.)
The element of intent to rob was a question for the jury and, therefore, the appellant’s motion to exclude was properly denied. See e.g., Hallford v. State, 548 So.2d 526 (Ala.Cr.App.1988); Harrell v. State, 470 So.2d 1303, 1307 (Ala.Cr.App.1984), affirmed, 470 So.2d 1309 (Ala.1985), cert, denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276, (1985) (intent is a question for the jury.) The evidence at trial, including the appellant’s confession, showed that the appellant strangled Linda Jarman to death, took her automobile, left the state in it, and abandoned it along an Interstate highway in Kentucky. His fingerprints were found in the car, as was the key to his apartment in Talladega. A camp site, littered with numerous items linked to the appellant, including his birth certificate and a letter to his mother, was found near the abandoned automobile. Furthermore, the appellant’s neighbor testified that, after the appellant had borrowed the victim’s car, he returned to his apartment, where he informed his neighbor that he had borrowed his girl friend’s ear. His neighbor then observed him taking out a number of large trash bags, which the appellant stated were filled with some of his girl friend’s “stuff” which he was taking back to her. From this evidence, the jury could have reasonably concluded that the appellant intended to take the victim’s automobile in order to leave town. The fact that the appellant contends that he did not intend to rob the victim of her automobile made the issue a question for the jury. Travis v. State, 484 So.2d 1148, 1150 (Ala.Cr.App. 1985); Odom v. State, 348 So.2d 277, 282 (Ala.Cr.App.), cert, denied, 348 So.2d 282 (Ala.1977).
Moreover, although the appellant argues that the State failed to prove robbery, because of his contention that he had permission to borrow the car, the jury could have reasonably concluded from the evidence that the appellant exercised unauthorized control of the vehicle. A writing pad was introduced into evidence, which was found at Sherry Weathers’s residence and which contained a message, written by his girl friend, stating: “Daniel came by here. He will be back. He used Linda’s car.” Thus, the jury could have concluded that the appellant was to bring the vehicle back and was not given authority to leave the state in the vehicle or to abandon it on the side of an Interstate highway in Kentucky 13 days later. The crime of theft of property clearly includes the exertion of “unauthorized control over the property of another, with intent to deprive the owner of his property.” § 13A-8-2, Code of Alabama (1975). One of the definitions of “deprive” stated under § 13A-8-1, Code of Alabama (1975), is: “To dispose of the property so as to make it unlikely that the owner would recover it.” Thus the evidence supports the jury’s finding that the appellant intended to deprive Linda Jarman of her automobile and exerted unauthorized control of the automobile. See Deep v. State, 414 So.2d 141, 148-49 (Ala.Cr.App.1982).
Finally, the State sufficiently proved that Linda Jarman was killed during the commission of the robbery. “The crime of robbery when the victim is intentionally killed is a single offense beginning with the act of robbing or attempting to rob in culminating with the act of intentionally killing the victim.” Magwood v. State, 494 So.2d 124, 148 (Ala.Cr.App.1985), affirmed, 494 So.2d 154 (Ala.1986), cert, denied, Magwood v. Alabama, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). The term “during” is defined by § 13A-5-39(2), Code of Alabama (1975), as “in the course of or connection with the commission of, or in immediate flight from the commission of the underlying felony or attempt thereof.” “[T]hus, even if the appellant took the victim’s property when he was in ‘immediate flight after the attempt or commission/ his actions were still embraced within the statutory scheme for murder committed during a robbery.” Davis v. State, 536 So.2d 110 (Ala.Cr.App.1987), affirmed, 536 So.2d 118 (Ala.1988). See also Hallford v. State, supra.
The trial court properly overruled the appellant’s motion to exclude, as there was sufficient evidence to submit the case to the jury.
V
The appellant argues that the trial court erred in allowing the prosecutor to question witnesses about victims in other crimes for which the appellant was indicted. Specifically, the appellant argues that it was error to allow the district attorney to ask a witness, “Did you know a lady by the name of Sherry Weathers during her lifetime?” The appellant argues that this question insinuated to the jury that Sherry Weathers was dead, which information was highly prejudicial in that the evidence showed the victims to be neighbors and to have both been present with the appellant on the night in question. The record indicates that the defense counsel filed a motion in limine requesting that the prosecution and the State’s witnesses refrain from any mention of any other criminal activity on the part of the appellant. The appellant was also charged with the murders of his girl friend (Sherry Weathers) and her two young sons, those murders allegedly having occurred on the same night as the instant offense, just prior to his strangulation of Linda Jarman. The appellant was also charged with the murder of his neighbor S.L.’s girl friend, that murder allegedly having also occurred the same day. However, the capital case against the appellant for the murders of his girl friend and her sons had not yet commenced at the time of the trial in the instant case.
A hearing was held on the appellant’s motion in limine, in which the prosecutor stated that the State did not intend to go into such matters during the guilt phase, unless the appellant took the witness stand. The prosecutor, however, indicated that the other offenses “may become material as to the intent of the defendant in taking Linda Jarman’s automobile.” The prosecutor agreed not to bring up the other offenses until he had attempted to admit the appellant’s statement into evidence. The trial judge ruled that the prosecutor should not mention the other offenses during his opening statement and that he would withhold his ruling until the proper time.
As a preliminary question during the direct examination of an employee of a food mart, which was located close to the victim’s apartment, the prosecutor asked the witness whether he knew Linda Jarman. He then asked if the witness knew the appellant’s girl friend “during her lifetime”, and the witness answered affirmatively. It was subsequently revealed that the appellant, Linda Jarman, and his girl friend had been seen together by the witness on the day in question, the witness being one of the last people to see Linda Jarman alive.
We need not determine whether the murders of the appellant’s girl friend and her children were admissible under an exception to the exclusionary rule, because we do not find that the prosecutor’s question of the witness introduced evidence of any collateral offense. By asking the witness whether he knew the appellant’s girl friend “during her lifetime,” the prosecutor insi-nutated to the jury that the appellant’s girl friend was dead, but in no way did the question indicate that the appellant had anything to do with her death. Moreover, it was not error to disclose to the jury that the appellant’s girl friend was no longer alive, because this court has held that the State may inquire of a witness whether a party, who is known to have been in the presence of the victim close to the time of the offense, is living or dead, in order to explain his or her absence. Collins v. State, 115 So. 223, 217 Ala. 212 (1928).
The appellant was not prejudiced by the prosecutor’s question. The question did not indicate how the appellant’s girl friend died, nor did it connect the appellant in any way with her death. Therefore, the trial court properly allowed the prosecutor to ask the question.
VI
The appellant argues that the trial court erred in overruling his challenge of a juror who allegedly thought that the appellant was guilty and a juror who had heard that the appellant was charged with the murder of some children.
The following transpired during the voir dire examination of one of the potential jury members:
“[DEFENSE COUNSEL]: You said earlier you think he is probably—
“JUROR BETTY C.: (Interrupting) Well, I shouldn’t have said that. Because I think I could be fair. I mean, you know, how you read, and you think guilty. I never questioned it, but I think I could be fair.
“[DEFENSE COUNSEL]: Okay, you said a minute ago, I believe that question was, and I might be mistaken, but I believe it was, did you think the defendant was probably guilty or was probably innocent. Which one were you leaning towards there, a little bit?
“MRS. BETTY C.: I was thinking guilty.
“[DEFENSE COUNSEL]: Probably guilty.' Okay. Do you know of any reason you couldn’t give the defendant a fair trial?
“MRS. C.: No, sir.
“[DEFENSE COUNSEL]: Do you think you could put that out of your mind, even though today, or at some time in the past you thought he was probably guilty?
“MRS. C.: Yes, sir.”
Subsequently, the defense counsel challenged juror B.C. The following transpired:
“THE COURT: The question is this. Lawyers ask question in all kinds of ways. But I’ll direct this question to you. And it has to be answered yes or no. Do you have a fixed opinion as to the guilt or innocence of the defendant that would bias your verdict assuming you were chosen to sit on this case?
“JUROR C.: No.
“THE COURT: I’ll overrule the challenge.”
“To disqualify a prospective juror, he must have more than a bias, or fixed opinion, as to the guilt or innocence of the accused. Such opinion must be so fixed as that it would bias the verdict a juror would be required to render. Hammil v. State, 90 Ala. 577, 8 So. 380.” McCorvey v. State, 339 So.2d 1053, 1057 (AIa.Cr.App.), cert, denied, 339 So.2d 1058 (Ala.1976). “A ‘fixed opinion’ which will bias a verdict is one that is a conviction or prejudgment, a strong or deep impression which closes the mind of a juror and combats the testimony and resists its force.” Nobis v. State, 401 So.2d 191, 197 (AIa.Cr.App.), writ denied, 401 So.2d 204 (Ala.1981).
“[A] proper challenge for cause exists only when a prospective juror’s opinion or bias is so fixed that he or she could not ignore it and try the case fairly and impartially according to the law and the evidence. See Sparks v. State, 450 So.2d 188 (Ala.Cr.App.1984); Clark v. State, 443 So.2d 1287 (Ala.Cr.App.1983); Gwin v. State, 425 So.2d 500 (Ala.Cr.App.1982), writ quashed, 425 So.2d 510 (Ala.1983). Further, ... a trial court’s ruling on a challenge for cause based on bias is entitled to great weight and will not be disturbed on appeal unless there is a clear showing of an abuse of discretion by the trial court. See Price v. State, 383 So.2d 884 (Ala.Cr.App.), cert, denied, 383 So.2d 888 (Ala.1980); Motes v. State, 356 So.2d 712 (Ala.Cr.App.), cert, denied, 356 So.2d 720 (Ala.1978).”
Ex parte Rutledge, 523 So.2d 1118, 1120 (Ala.1988).
Juror B.C. gave adequate assurances that she could set aside any opinion of guilt which she might have had and that she could give the appellant a fair trial. Clearly, her opinion was not so “fixed” that her mind was closed on the case and the evidence.
The appellant also argues that the trial court erred in denying his challenge of Juror S. for cause. The following transpired during the voir dire questioning:
“[DEFENSE COUNSEL]: Based on what you saw or read or what you discussed with somebody, what do you think happened? What do you think about it?
“JUROR S.: Well, I think it was a terrible thing.
“[DEFENSE COUNSEL]: What is so bad?
“JUROR S.: Well, with the children part of it, because I have got two small children at home.
“[DEFENSE COUNSEL]: So, you have heard that the defendant was charged with killing some children?
“JUROR S.: Yes.
“[DEFENSE COUNSEL]: Based on that, would you have a hard time sitting as a juror?
“JUROR S.: Probably so.
“[DEFENSE COUNSEL]: And it would be hard to give the defendant a fair trial based on what you have heard or what you know?
“JUROR S.: Probably so.
“[DEFENSE COUNSEL]: I believe I would challenge Mrs. S..
“[PROSECUTOR]: I would like to ask a question.
“THE COURT: All right.
“[PROSECUTOR]: Mrs. S., we are now trying any [sic] case today by the State of Alabama versus Danial Siebert for the death of a Linda Ann Jarman, she was a deaf lady that lived here in the City of Talladega. Could you put any knowledge of what you have seen, heard, read, about anything else, out of your mind and render a verdict in this case and this case alone based upon the evidence that comes to you from the witness stand and the exhibits that are allowed into evidence by the Judge, and the Judge’s instructions as to the law? Can you do that?
“JUROR S.: Yes, sir.
“[PROSECUTOR]: So, anything that you have heard, read, or anything else, you can put that totally out of your mind and render a fair and impartial verdict, based upon the evidence?
“JUROR S.: Yes, sir.
“[PROSECUTOR]: Thank you very much.
“[DEFENSE COUNSEL]: So, the fact that you have heard of him having been charged with committing other crimes, that wouldn’t affect the way you would rule on this case?
“JUROR S.: I don’t think so.
“[DEFENSE COUNSEL]: You wouldn’t hesitate to find him not guilty on this because of your knowing that he might be charged with another crime?
“JUROR S.: No, sir.
“[DEFENSE COUNSEL]: Wouldn’t he-sistate at all?
“[ASSISTANT PROSECUTOR]: She is saying no.
“[DEFENSE COUNSEL]: So, were you just mistaken a minute ago when you said you would have a hard time putting that out?
“JUROR S.: Well, no, I was just thinking more of the other case in case the same jury was used on all the cases.
“[DEFENSE COUNSEL]: So, if you were selected as a juror in this case, you would still think about him having been charged with the other cases?
“JUROR S.: No, sir, I don’t believe so.
“[DEFENSE COUNSEL]: Just this one right here?
“JUROR S.: Yes.
“[DEFENSE COUNSEL]: And in deciding your verdict, you wouldn’t keep thinking about that he might be charged with another crime?
“JUROR S.: I would go by the evidence.
“[DEFENSE COUNSEL]: In this case alone?
“JUROR S.: Uh, huh. (Affirmative response)
“[DEFENSE COUNSEL]: Now, do you think that if he chose not to testify in this case would you hold that against him?
“JUROR S.: No.
“[DEFENSE COUNSEL]: Would you think that he ought to get up there and. tell his side of it?
“JUROR: Well, no.
“[DEFENSE COUNSEL]: If you had to decide right now would you find him not guilty?
“JUROR S.: Yes, sir.
“[DEFENSE COUNSEL]: Would you tell me what you think. Do you think he is probably guilty of what he is charged with?
“[PROSECUTOR]: Judge, again, we object.
“[DEFENSE COUNSEL]: She has got a right—
“[PROSECUTOR]: We object to him asking her a question, having her to render her judgment, she is asked to sit upon facts which are not in evidence. We have no testimony from the witness stand. He is asking her thoughts as to whether or not he is guilty or not guilty.
“[DEFENSE COUNSEL]: And that is exactly what voir dire is for.
“THE COURT: Do you have a fixed opinion of the man’s guilt or innocence, already?
“JUROR S.: No, sir.
“THE COURT: All right.
“[DEFENSE COUNSEL]: Do you have a probable opinion? Do you think he is probably innocent or probably guilty?
“JUROR S.: No, because I have not heard the evidence.
“THE COURT: The question, again, if you were chosen to serve on this case, could you render a fair and impartial verdict based solely on the evidence allowed in the case and my charge as I give it to you on the law?
“JUROR S.: Yes, sir.
“THE COURT: You can do that?
“JUROR S.: Yes.
“THE COURT: Overrule the challenge.”
As stated previously, it is clear that Juror S. adequately assured the court that she could base her decision solely on the evidence presented at trial, despite any opinions or feelings she might have previously had. Therefore, her opinion was not “fixed” as to the appellant’s guilt. See Ex parte Rutledge, supra; Nobis v. State, supra; McCorvey v. State, supra. The trial court properly overruled the appellant’s challenges for cause as to these two prospective jurors.
VII
The appellant argues that the prosecutor, during the sentencing phase, in attempting to prove an aggravating circumstance, should not have been allowed to go into the details of the appellant’s prior conviction for manslaughter. The prosecutor had indicated that the State would attempt to prove the aggravating circumstance that “[t]he defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person”. § 13A-5-49(2), Code of Alabama (1975). Thus, the prosecutor introduced evidence of a prior conviction of manslaughter and introduced evidence concerning the circumstances of the manslaughter in order to prove the violence. The prosecutor asked a police officer, who testified concerning the appellant’s prior manslaughter conviction, the following questions:
“Q: How did he die?
“A: Multiple stab wounds.
“Q: How many multiple stab wounds?
“A: Total wounds, we are not sure. We stopped at 29.”
Thereafter, on cross-examination, the defense counsel asked the police officer the following questions:
“Q: Weren’t a number of those wounds on the victim’s legs?
“A: They were throughout his body.
“Q: And there was testimony in the trial that Mr. Siebert was lying on the ground and the victim was standing when some of these wounds were inflicted, is that correct?
“Q: ... Was the victim a homosexual?
“A: Yes, sir.
“Q: And there was testimony about advances being made toward the defendant, wasn’t there?”
Thereafter, on redirect examination, the following transpired:
“Q: ... How was the testimony in evidence as to how the defendant was dressed at the time, wasn’t he naked at the time that he put the stab wounds in him? Wasn’t that the evidence?
“A: I’m not positive.
“Q: I believe he fled the scene and were [sic] some time getting into custody, wasn’t he?
“A: Yes, sir.”
On re-cross examination, the following transpired:
“Q: Do you know how they did catch him?
“A: He gave himself up.
“Q: Talking about the defendant being unclothed, there was some testimony about the other fellow going in on him, wasn’t there? Into the apartment, into the room?
“A: Again, that came from the defendant.”
Finally, on redirect examination, the following transpired:
“Q: I have just got one more. He didn’t come on him 29 different times, did he? I mean, he didn’t charge on him 29 different times, did he?
“A: I have no way of telling. All I got was 29 wounds.”
Initially, we note that the testimony regarding the victim’s homosexuality and the nakedness of the appellant resulted from the defense counsel’s questioning and “opened the door” for the prosecutor’s subsequent questions on the subject. See Sandifer v. State, 535 So.2d 203 (Ala.Cr. App.1988); McCray v. State, 548 So.2d 573 (Ala.Cr.App.1988). Furthermore, the testimony concerning the number of stab wounds inflicted on the victim by the appellant was properly admitted to show the violent nature of the offense, under § 13A-5-45(c) and (d), Code of Alabama (1975). That Code section, which addresses the admissibility of evidence in a sentence hearing, states, in pertinent part:
“(c) At the sentence hearing evidence which may be presented as to any matter that the court deems relevant to sentence shall include any matters relating to the aggravating and mitigating circumstances referred to in sections 13A-5-49, 13A-5-51 and 13A-5-52....
“(d) Any evidence which has probative value and is relevant to sentence shall be received at the sentence hearing regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the State of Alabama.”
We find that the testimony regarding the violence of the appellant’s prior manslaughter offense was relevant and of probative value in the sentencing aspect of the trial. See Hallford v. State, 548 So.2d 526 (Ala. Cr .App.1988).
VIII
The appellant argues that the trial court erred in allowing into evidence a videotape of the crime scene. The appellant argues that the videotape was cumulative of photographs which were introduced into evidence and was also highly prejudicial in that it contained certain “close-ups” of the victim’s face showing decomposition. However, Captain Willard Hurst testified that the videotape depicted certain areas of the victim’s apartment which were not photographed. He further testified that many of the photographs were of poor quality because of weak batteries and that there was no other camera available to take the photographs. He also testified that videotaping the crime scene has become common practice in his jurisdiction.
We find that the videotape was properly admitted into evidence. Captain Hurst testified that he made the video of the interior of the apartment and he stated that, after viewing the videotape, he concluded that it accurately and fairly depicted the interior of the victim’s apartment as it appeared on February 24, 1986. Further, there is a date and time of filming on the videotape.
“Provided that a proper foundation is laid, the admissibility of videotaped evidence in a criminal trial is matter within the sound discretion of the trial judge. Annot., 60 A.L.R.3d 333 (1974). See Thompson v. State, 462 So.2d 777, 779-80 (Ala.Cr.App.1984). The State established the proper foundation here, and there is no question regarding the authenticity of the videotape. The fact that the tape was cumulative to other photographic evidence is not a basis for reversal. Photographic evidence is admissible even though it may be cumulative or demonstrative of undisputed facts. Hopkins v. State, 429 So.2d 1146, 1157 (Ala. Cr.App.1983).”
Donahoo v. State, 505 So.2d 1067, 1071 (Ala.Cr.App.1986).
Furthermore, the videotape was admissible despite the appellant’s claim that it was highly inflammatory because it showed the decomposition of the victim’s body. The same rule applies for videotapes as for photographs: “The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Ex-parte Carpenter, 400 So.2d 427 (Ala. 1981)..” Walker v. State, 416 So.2d 1083, 1090 (Ala.Cr.App.1982). See also White v. State, 435 So.2d 1367, 1371 (Ala.Cr.App. 1983).
“These photographs did have ‘some tendency to prove or disprove some disputed or material issue’ or ‘to illustrate or elucidate some other relevant fact or evidence, or corroborate or disprove some other evidence offered or to be offered.’ Baldwin v. State, 282 Ala. 653, 655, 213 So.2d 819, 820 (1968). There is irony in a convicted murderer’s contending on appeal that pictures of the corpse of his victim might have inflamed the jury. That risk ‘comes with the territory.’ ”
Grice v. State, 527 So.2d 784, 787 (Ala.Cr. App.1988).
“Further, the receipt into evidence of such exhibits lies within the sound discretion of the trial court. Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983).” Burton v. State, 521 So.2d 91, 92 (Ala.Cr.App. 1987). We find no abuse of discretion by the trial court in allowing the videotape into evidence.
IX
In accordance with § 13A-5-53, Code of Alabama (1975), we have reviewed the record; including the guilt and sentencing proceedings, for any error which adversely affected the rights of the appellant, and we have found none. Nor do we find any evidence that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor.
The trial court properly found the existence of two aggravating circumstances: that the capital offense was committed while the appellant was engaged in the commission of a robbery; and that the defendant had been previously convicted of another capital felony or a felony involving the use or threat of violence to the person. The trial court’s reasons for finding these two aggravating circumstances are amply supported by the evidence. See Parts IV and VII.
The court properly found the existence of no mitigating circumstances, based on the evidence presented at trial. After considering the presentence investigation report, the trial court found: that the defendant had a significant history of prior criminal activity; that the capital offense was not committed while the defendant was under the influence of extreme mental or emotional disturbance; that the victim was not a participant in the defendant’s conduct and did not consent thereto; that the defendant did not have an accomplice and was the sole perpetrator of the capital offense; that the defendant did not act under extreme duress or under the substantial domination of another person; that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired; and that the age of the defendant at the time of the crime was 31 years. These findings by the trial court are supported by the evidence. The appellant failed to prove any non-statutory mitigating circumstances.
The trial judge also considered the jury’s advisory verdict of death, before determining that the aggravating circumstances outweighed the mitigating circumstances. Our independent weighing of the aggravating and mitigating circumstances supports the trial court’s conclusion that death was the proper sentence.
The sentence of death in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. See Acres v. State, 548 So.2d 459 (Ala.Cr.App.1987); Baldwin v. State, 456 So.2d 117 (Ala.Cr.App.1983), affirmed, 456 So.2d 129 (Ala.1984), affirmed, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985); Bell v. State, 475 So.2d 601 (Ala.Cr.App.1984), affirmed, 475 So.2d 609 (Ala.), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985); Bracewell v. State, 475 So.2d 616 (Ala.Cr.App.1984).
The record is devoid of any indication of plain error. Therefore, the appellant’s judgment of conviction and sentence of death are proper. The judgment of the circuit court is affirmed.
AFFIRMED.
All the Judges concur.
Danial L. SIEBERT v. STATE.
5 Div. 383.
Court of Criminal Appeals of Alabama.
April 28, 1989.
Rehearing Denied June 30, 1989.
George N. Sims, Talladega, for appellant.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
[OPINION BY TAYLOR, Presiding Judge. type=majority]
TAYLOR, Presiding Judge.
The appellant, Danial L. Siebert, was convicted of the murders of Sherri Weathers, Chad Charles Weathers, and Joseph Charlton Weathers, a capital offense as defined by § 13A-5-40(a)(10), Code of Alabama 1975. Following a sentencing hearing, the jury unanimously recommended a sentence of death. The trial court ordered a presentence investigation to be conducted and, after complying with § 13A-5-47, Code of Alabama 1975, sentenced the appellant to death by electrocution.
The evidence as presented by the State tended to establish that in late December 1985, D.H. left Los Angeles, California, driving east. H. was going first to North Carolina to visit his family, and then to Talladega, Alabama, where he was to operate a theater program at the Alabama Institute for the Deaf and Blind (hereinafter referred to as the Institute). In Tucson, Arizona, H. picked up a man who identified himself as Danial Spence. H. identified the appellant as that man. Appellant, who was an artist, discussed his views on art with H. and showed him some of his work. H. was impressed with appellant’s talent and asked him to come to Talladega and work with the theater program as a set designer. Appellant readily agreed, but stated that he wished to visit his mother in Illinois before going to Talladega. H. and appellant parted company just north of Jacks on, Mississippi. Appellant was hitchhiking north to Illinois. H. continued driving east to North Carolina. H. arrived in Talladega on January 9, 1986. Appellant arrived there on January 20, 1986.
H. and appellant first shared an apartment at the Institute, then moved into another apartment in the Porter Building approximately a week and a half later. Appellant expressed to H. an interest in settling down in Talladega. Shortly after the two men moved into the Porter Building, appellant began dating Sherri Weathers, a 24-year-old deaf student at the Institute. Because such a relationship was specifically prohibited by the Institute’s rules, H. wished to separate himself from this situation, and moved out of the Porter Building apartment on February 16, 1986. H. and appellant saw each other for the last time on February 19, 1986, when H. arranged to pick up appellant around 8:00 a.m. the next morning to attend a faculty meeting. When H. went by the Porter Building the next morning, however, appellant was not there.
In February 1986, Sherri Weathers was living in apartment 30 of the Sunrise Apartments with her sons, five-year-old Chad and four-year-old Joey. Around 8:00 p.m. on February 19, 1989, appellant was seen with Sherri Weathers and a neighbor of hers, Linda Jarman, buying beer at a convenience store in Talladega. The three left the convenience store together. F.P., a neighbor of Sherri’s, returned home around 9:30 p.m. that night and found a note from Sherri asking him to come over and play cards with her, Linda Jarman, and appellant. P. went over to Sherri’s apartment around 10:30 p.m., where he found Sherri and Linda chatting. They told P. that appellant had left in Linda’s car, a cream-colored Buick, to get some beer, and said they all were going to play cards when appellant returned. P. remained at the apartment until about 11:30 or midnight. When he left to go back to his apartment, appellant still had not returned.
Sometime during the night of February 19, 1986, C.S., who lived next door to Sherri Weathers in apartment 31 of the Sunrise apartments, heard through her wall adjoining Sherri’s apartment a man saying “Come to me. You can join your mother.” Later, she heard the man say, “Come on and you will be with your mother and your brother.”
B.K., another resident of the Sunrise Apartments, saw Sherri Weathers fighting with appellant in her apartment on the night of February 19, 1986. When asked what time he observed them fighting, B.K., a mildly retarded deaf man, could only say that it was sometime after 8:00 p.m., the time he arrived home. By Sunday, February 23, 1986, B.K. had not seen Sherri or her children around the apartments. Remembering the fight he had seen between Sherri and appellant in her apartment on Wednesday night, B.K. tried to check on Sherri, but could summon no one to the door of apartment 30. By this time B.K. was extremely concerned about the welfare of Sherri and her children, so he entered Sherri’s apartment through an unsecured window, but when he saw a part of Sherri’s body protruding out from under a sheet, he became scared and left. B.K. was later cleared by the police of any involvement in the murders.
The next morning, however, B.K. told Wanda Hunley, an Institute social worker, that he was concerned about Sherri and asked her to check on Sherri and her sons. After making several phone calls, she learned that no one had seen Sherri or her children in several days. She also learned that there was an odor emanating from apartment 30. Ms. Hunley, accompanied by several other individuals, then went to the Sunrise Apartments and obtained a passkey for apartment 30. Upon entering the apartment, Ms. Hunley and the others found the bodies of Sherri, Chad, and Joey Weathers.
Autopsies of the bodies of the three people disclosed that Sherri Weathers died as the result of strangulation, and that Chad and Joey Weathers died as the result of ligature strangulation.
An extensive investigation was launched. During this investigation, shoe prints were lifted from apartment 30 and from the appellant’s apartment in the Porter Building. The shoe print from the Porter Building apartment and some of those from Sherri’s apartment were found to be consistent in tread design and approximate size. Additionally, a child’s pajama bottom was found in appellant’s Porter Building apartment.
In March 1986, a 1973 Buick was found abandoned near Elizabethtown, Kentucky. A black purse in this car contained a receipt bearing the name of Sherri Weathers. Also found in the car was a brass key which opened the door to appellant’s Porter Building apartment. At an abandoned campsite near the Buick were found business cards bearing the name Danial Spence and the address of his Porter Building apartment; various photographs of Sherri Weathers; a mailgram addressed to D.H.; a birth certificate bearing the name Danny Ray Spence; other items bearing the name Danial Spence; two sheets of white paper on which appeared the names Sherri Weathers, Chad Weathers, and Joseph Weathers; and an art pad bearing the name Sherri Weathers. Various items of clothing found at the Kentucky site were found to contain fibers of the same type as the red carpet in appellant’s Porter Building apartment. Finally, two fingerprints and a palm print discovered on the Buick were identified as those of the appellant, Danial L. Siebert.
In March 10, 1986, appellant identified himself in New Jersey to Harold Hutchins of the Atlantic City Police Department, using a Social Security card bearing the name of Chad Weathers.
On June 14, 1986, appellant identified himself in Virginia to Joseph McLaughlin of the New Kent County Sheriffs Department, using a Social Security card bearing the name of Joseph Charles Weathers.
Appellant was finally apprehended in Hurricane Mills, Tennessee, on September 5, 1986. At the time of his arrest, appellant had in his possession a Social Security card bearing the name of Joseph C. Weathers, and a torn manila envelope on which appeared the following: “-eathers, Joseph.”
After appellant was advised of his Miranda rights and waived those rights, he made a statement, the pertinent part of which follows:
He went to Sherri Weathers’s apartment on the evening of February 19, 1986, and let himself in with a key which he had been given. Sherri and Linda Jarman were there. Eventually, Linda left. As he and Sherri were walking toward her bedroom, he strangled her with a piece of cloth that he had on his person. Then he woke up each of the boys individually and strangled them. He left town in a car, which he abandoned in Kentucky after it had two flat tires. After spending a couple of days at a campsite he set up near the car, he headed north and then went east, in an attempt to get as far away from Alabama as he could.
Thereafter, appellant waived his right to formal extradition proceedings and was returned to Alabama to stand trial for the murders of Sherri, Chad, and Joey Weathers. We note that appellant has also been convicted of the capital murder of Linda Jarman and received the death sentence. His conviction and sentence have been affirmed by this court. Siebert v. State [Ms. 7 Div. 851, April 14, 1989] (Ala.Cr.App.1989).
I
Appellant first contends that the trial court erred in admitting into evidence statements made by appellant because, he says, the Miranda warnings given to him in Tennessee were improperly worded. Specifically, appellant contends that the detective, who informed appellant of his Miranda rights prior to appellant’s making his statement, told him “anything you say can be used against you in court,” instead of “anything you say can and will be used against you in a court of law,” and therefore that his initial statement, and all subsequent statements, were inadmissible. This contention was raised without success in appellant’s earlier appeal. Siebert v. State, supra.
Our examination of the record reveals that at the time of his arrest appellant was informed of his Miranda rights by Captain Hurst of the Talladega Police Department. Shortly thereafter, upon arrival at the Humphreys County, Tennessee, jail, appellant was again informed of his Miranda rights and made a decision to waive those rights. It was at this time that he was informed “anything you say can be used against you in court.” Appellant then made an incriminating statement to Captain Hurst. Later, upon appellant’s return to Talladega, he made another incriminating statement to Captain Hurst. However, prior to this statement, appellant was informed that “anything you say can and will be used against you in a court of law.”
Appellant’s contention that the wording differences between these two Miranda forms renders his confession inadmissible must fail. The opinion in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), states in pertinent part, that “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” This language was expounded upon in California v. Prysock, 453 U.S. 355, 359-60, 101 S.Ct. 2806, 2809-10, 69 L.Ed.2d 696 (1981), wherein the United States Supreme Court wrote as follows:
“This Court has never indicated that the ‘rigidity’ of Miranda extends to the precise formulation of the warnings given a criminal defendant. See, e.g., United States v. Lamia, 429 F.2d 373, 375-376 (CA2), cert. denied, 400 U.S. 907 [91 S.Ct. 150, 27 L.Ed.2d 146] (1970). This Court and others have stressed as one virtue of Miranda the fact that the giving of the warnings obviates the need for a case-by-case inquiry into the actual voluntariness of the admissions of the accused. See Fare v. Michael C., 442 U.S. [707], at 718 [99 S.Ct. 2560, 2568, 61 L.Ed.2d 197 (1979)]; Harryman v. Estelle, supra [616 F.2d 870 (5th Cir.1980)]. Nothing in these observations suggests any desirable rigidity in the form of the required warnings.
“Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that ‘[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the ad-missiblity of any statement made by a defendant.’ 384 U.S., at 476 [86 S.Ct., at 1629] (emphasis supplied). See also id., at 479 [86 S.Ct., at 1630] Just last Term in considering when Miranda applied we noted that that decision announced procedural safeguards including ‘the now familiar Miranda warnings ... or their equivalent.’ Rhode Island v. Innis, 446 U.S. 291, 297 [100 S.Ct. 1682, 1688, 64 L.Ed.2d 297] (1980) (emphasis supplied).”
The language set out above was followed by this court in Jones v. State, 456 So.2d 366, 373 (Ala.Cr.App.1983), aff'd, 456 So.2d 380 (Ala.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985), wherein we stated:
“The Miranda decision requires no talismanic formulation of the warnings to be given to a criminal defendant as to the constitutional rights protected by that decision. California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981). Reviewing the language used to inform the appellant herein of his right to appointed counsel, we find, as did the court in Prysock, supra, that ‘[t]his is not a case in which the defendant was not informed of his right to the presence of an attorney during questioning ... or in which the offer of an appointed attorney was associated with a future time in court....’ Prysock, supra, at 361, 101 S.Ct. at 2810. (Citations omitted.) There was no error in this regard.”
See also Siebert v. State, supra. We find, therefore, that the warning here sufficiently communicated to the appellant the necessary information regarding his constitutional rights.
The appellant also argues that his statements should not have been allowed into evidence because, he says, they were involuntary; specificially, he says they were conditioned on Captain Hurst’s alleged promise that he would not be asked certain questions concerning “details” of the murders. Captain Hurst, however, testified that appellant told him that he would admit to the killings, but would not go into any details until he got back to Alabama, a condition to which Captain Hurst agreed. Appellant now claims that Captain Hurst’s agreement to this condition constituted a “promise” or inducement for his statement, thereby rendering his statements involuntary and inadmissible.
The question of undue influence in obtaining admissions or confessions is determined by an examination of all attendant circumstances, with the inquiry focusing on whether the accused’s free will and rational intellect were overborne at the time of his confession. Hubbard v. State, 500 So.2d 1204, 1220 (Ala.Cr.App.), aff'd, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987); McCammon v. State, 499 So.2d 811, 815 (Ala.Cr.App.1986); Seawright v. State, 479 So.2d 1362, 1367 (Ala.Cr.App.1985); Agee v. State, 465 So.2d 1196, 1198 (Ala.Cr.App.1984). “The factual inquiry centers on (1) the conduct of law enforcement officials in creating pressure and (2) the suspect’s capacity to resist that pressure.” Seventeenth Annual Review of Criminal Procedure, 76 Geo.L.J. 676 (1988). “If an individual’s ‘will was overborne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible because coerced.” Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). “The types of promises which may make a defendant’s statement involuntary are, e.g., promises of leniency, promises to bring the defendant’s cooperation to the attention of the prosecutor, the disclosure of incriminating evidence to the accused, and silence in response to the defendant’s offer to talk if his statement would not be used against him.” Siebert v. State, supra. However, this court has made it clear that a statement “is not rendered involuntary by a promise of benefit that was solicited freely and voluntarily by the defendant himself.” Rowe v. State, 421 So.2d 1352, 1355 (Ala.Cr.App.1982); Eakes v. State, 387 So.2d 855, 860 (Ala.Cr.App.1978).
Although appellant has attempted to transform Captain Hurst’s actions into a promise of benefit or inducement, it is readily apparent from the testimony that this was simply a condition placed by the defendant on the extent of his confession at that time. Captain Hurst neither promised appellant anything nor induced him in any way. He was merely acknowledging the terms which the appellant had unilaterally imposed. Appellant had the right to remain silent. He also had a right to limit any statement which he close to make. Captain Hurst was only honoring this right. Any benefit which may have accrued from this agreement was solicited freely and voluntarily by the appellant himself, and thus, failed to render his,confession involuntary. Accordingly, the trial court correctly received the offered portions of appellant’s confession into evidence.
II
Appellant next contends that the trial court erred in refusing to invalidate his return from Tennessee to Alabama. Specifically, appellant contends that he did not understand that he had a right to contest his extradition at a hearing, and that he had the right to advice of counsel before and during such a hearing. Appellant is apparently arguing that because his return to Alabama was improper and therefore that this State’s prosecution of him for the murders of Sherri, Chad, and Joey Weathers is illegal.
Even if appellant is correct in his statement of the underlying facts, his argument based on those fact is factually contrary to the United States Supreme Court’s decision in Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952). There, a defendant was forcibly seized from his Chicago, Illinois, home by Michigan officers, handcuffed, beaten, and then taken to Michigan, where he was tried and convicted. As stated by Justice Black in Frisbie:
“This Court has never departed from the rule announced in Ker v. Illinois, 119 U.S. 436, 444 [7 S.Ct. 225, 229, 30 L.Ed. 421 (1886) ], that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.”
342 U.S. at 522, 72 S.Ct. at 511. Thus, appellant has no complaint against the circumstances of his removal to Alabama, regardless of the facts.
Moreover, appellant’s contentions concerning the circumstances surrounding his waiver of an extradition hearing in Tennessee are contrary to the evidence adduced at trial. Appellant was informed that he was entitled to a hearing in Tennessee to determine whether he should be returned to Alabama, that he had a right to an attorney at this hearing, and that an attorney would be appointed for him if he was unable to afford one. Appellant stated that he understood these rights, that he did not want an attorney, and that he wanted to be extradited to Alabama. He also signed a form waiving his rights to a hearing or an attorney. Based on the foregoing, we fail to find any infringement of appellant’s rights in the procedure followed relative to his removal from Tennessee to this State shortly after his apprehension. See Beecher v. State, 288 Ala. 1, 256 So.2d 154, 164 (1971), rev’d on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972).
III
Appellant further contends that the trial court erred in allowing the district attorney to introduce into evidence at the sentence hearing a minute entry regarding his prior capital murder conviction in Talladega for the robbery/murder of Linda Jarman. Appellant argues that consideration of this conviction was barred because it was committed at the same time as the present offense. Our Supreme Court has held, however, that a felony conviction may be considered for the purpose of establishing as an aggravating circumstance that the accused had previously been convicted of a capital felony or one involving the use or threat of violence to the person, even if the felony was committed after the present crime. Ex parte Thomas, 460 So.2d 216, 225 (Ala.1984); Ex parte Coulter, 438 So.2d 352, 353 (Ala.1983). (Emphasis supplied.) Therefore, appellant’s contention of error must fail.
IV
Appellant also contends that the trial court erred in receiving into evidence a videotape of the crime scene. He apparently contends that, because the State was allowed to introduce numerous photographs of the crime scene, introduction of the videotape was cumulative of these photographs. Appellant also argues that the videotape was highly prejudicial, and that at the very least, certain of the more grisly portions should have been excluded. The trial court initially agreed that the videotape had little probative value, but later decided to admit it into evidence.
This issue was also raised in appellant’s earlier appeal. Judge McMillan, writing for this court in a case involving a related victim, stated as follows:
“We find that the videotape was properly admitted into evidence. Captain Hurst testified that he made the video of the interior of the apartment and he stated that, after viewing the videotape, he concluded that it accurately and fairly depicted the interior of the victim’s apartment as it appeared on February 24, 1986. Further, there is a date and time of filming on the videotape.
“ ‘Provided that a proper foundation is laid, the admissibility of videotaped evidence in a criminal trial is matter within the sound discretion of the trial judge. Annot., 60 A.L.R.3d 333 (1974). See Thompson v. State, 462 So.2d 777, 779-80 (Ala.Cr.App.1984). The State established the proper foundation here, and there is no question regarding the authenticity of the videotape. The fact that the tape was cumulative to other photographic evidence is not a basis for reversal. Photographic evidence is admissible even though it may be cumulative or demonstrative of undisputed facts. Hopkins v. State, 429 So.2d 1146, 1157 (Ala.Cr.App.1983).’
“Donahoo v. State, 505 So.2d 1067, 1071 (Ala.Cr.App.1986).
“Furthermore, the videotape was admissible despite the appellant’s claim that it was highly inflammatory because as it showed the decomposition of the victim’s body. The same rule applies for videotapes as for photographs: ‘The fact that a photograph is gruesome and ghastly is no reason for excluding it, if relevant, even if the photograph may tend to inflame the jury. Ex parte Carpenter, 400 So.2d 427 (Ala.1981).’ Walker v. State, 416 So.2d 1083, 1090 (Ala.Cr.App.1982). See also White v. State, 435 So. 2d 1367, 1371 (Ala.Cr.App.1983).
“ ‘These photographs did have “some tendency to prove or disprove some disputed or material issue” or “to illustrate or elucidate some other relevant fact or evidence, or corroborate or disprove some other evidence offered of to be offered.” Baldwin v. State, 282 Ala. 653, 655, 213 So.2d 819, 820 (1968). There is irony in a convicted murderer’s contending on appeal that pictures of the corpse of his victim might have inflamed the jury. That risk “comes with the territory.” ’
Grice v. State, 527 So.2d 784, 787 (Ala.Cr.App.1988).
“ ‘Further, the receipt into evidence of such exhibits lies within the sound discretion of the trial court. Hopkins v. State, 429 So.2d 1146 (Ala.Cr.App.1983).’ Burton v. State, 521 So.2d 91, 92 (Ala.Cr.App.1987). We find no abuse of discretion by the trial court in allowing the videotape into evidence.”
Therefore, the trial court correctly received the videotape into evidence.
V
As required by Beck v. State, 396 So.2d 645 (Ala.1980), and § 13A-5-53, Code of Alabama 1975, we have reviewed this case for any error involving the defendant’s conviction and the propriety of his death sentence.
The defendant Danial L. Siebert was indicted and convicted of an offense which is punishable by death. § 13A-5-40(a)(10), Code of Alabama 1975.
There has been no argument made by the defendant that the death sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, and there is no evidence to support any such contention.
Our review of the sentencing proceedings reveals that the trial court’s findings concerning the aggravating and mitigating circumstances are supported by the evidence. The trial court found the existence of only one aggravating circumstance: that the defendant was previously convicted of two felonies involving the use or threat of violence to the person, to wit: voluntary manslaughter in which the defendant was sentenced to ten years’ imprisonment, and capital murder for which the defendant was sentenced to death by electrocution. Section 13A-5-49(2), Code of Alabama 1975. After considering each of the statutory mitigating circumstances set out in § 13A-5-52, the trial court found the existence of no mitigating circumstances. As the trial court concluded, appellant “does not possess a single redeeming feature nor attribute.” This finding was also supported by the evidence.
Our independent weighing of the aggravating and mitigating circumstances convinces this court of the propriety of the death sentence in this case.
Moreover, we are convinced that the death sentence is neither excessive nor disproportionate to the penalty imposed in similar eases, considering both the crime and the defendant. See Jones v. State, 520 So.2d 543 (Ala.Cr.App.1984), aff'd, 520 So.2d 553 (Ala.), cert. denied, — U.S. -, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988) (murder of two or more persons); Peoples v. State, 510 So.2d 554 (Ala.Cr.App.1986), aff'd, 510 So.2d 574 (Ala.1987), cert. denied, 484 U.S. 933, 108 S.Ct. 307, 98 L.Ed.2d 266 (1987) (murder of two or more persons).
Finally, we have searched the entire record for any plain error or defect which might have adversely affected the defendant’s substantial rights and have found none. Alabama Rules of Appellate Procedure, Rule 45A.
The appellant’s conviction of this capital offense and his sentence of death are due to be, and they are hereby, affirmed.
AFFIRMED.
All the Judges concur.
Ex parte Danial L. SIEBERT. (Re Danial L. Siebert v. State).
88-1329.
Supreme Court of Alabama.
Dec. 15, 1989.
William J. Willingham, Talladega, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondents.
[OPINION BY SHORES, Justice. type=majority]
SHORES, Justice.
This is a death penalty case. In 1987, Siebert was convicted, pursuant to Alabama Code 1975, § 13A-5-40(a)(10), of the capital murder of Sherri Weathers and her sons, Chad and Joseph. The relevant facts surrounding the petitioner’s crime and conviction are set forth adequately in the Court of Criminal Appeals’ opinion, 555 So.2d 772, and need not be restated here. Two factual points need clarification, however. The record indicates that shoe prints lifted from the victims’ apartment matched those found on papers located at the rear of the Porter Building, not in the defendant’s apartment, as stated in the Court of Criminal Appeals’ opinion. Second, the defendant gave a brief inculpatory statement to law enforcement officers while he was in Tennessee, but he did not make the detailed statement describing the crimes and his actions following his departure from the state until he returned to Talladega.
I.
Siebert contends that before he made an incriminating statement to the police following his arrest in Tennessee, he was given improper Miranda warnings, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and, therefore, that the statement he made in Tennessee was improperly obtained. Specifically, Siebert contends that the police officer who informed him of his rights in Tennessee before he gave his first incriminating statement stated, “Anything you say can be used against you in court,” instead of “anything you say can and will be used against you in court,” which is what Miranda requires. Further, Siebert argues, any later statement he made was tainted as a result of the first statement, which he says was illegally obtained, and should not have been admitted into evidence.
Siebert’s argument is without merit. He implicitly suggests that the United States Supreme Court, in deciding the Miranda case, required that the constitutional warnings administered to a defendant be an incantation of the precise language set forth in that opinion. Nothing in Miranda or in the subsequent opinions interpreting the Miranda opinion suggests any rigid requirements in the form of the Miranda warnings. In response to an argument similar to the one made here by Siebert, the Supreme Court stated:
“Quite the contrary, Miranda itself indicated that no talismanic incantation was required to satisfy its strictures. The Court in that case stated that ‘[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant.’ 384 U.S., at 476, 86 S.Ct., at 1629 (emphasis supplied). See also id., at 479, 86 S.Ct., at 1630. Just last Term in considering when Miranda applied we noted that that decision announced procedural safeguards including ‘the now familiar Miranda warnings ... or their equivalent.’ Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980) (emphasis supplied).”
California v. Prysock, 453 U.S. 355, 359-60, 101 S.Ct. 2806, 2809-10, 69 L.Ed.2d 696 (1981).
In fact, the Supreme Court, in the Miranda opinion, summarized part of its holding by stating, “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d.694 (1966) (emphasis added). Thus, the very language that Siebert contends violated Miranda is contained within the Miranda Court’s own summary of its holding. Accordingly, we find that the warnings given to Siebert in Tennessee before he made his initial inculpatory statement sufficiently advised him of his constitutional rights and that subsequent inculpatory statements were in no way tainted by this initial statement.
Siebert also argues that the statement he made in Tennessee was involuntary because, he argues, it was conditioned on an alleged promise by the police officer that Siebert would not be questioned about the details of the murders until he returned to Alabama, and that, as a result, all subsequent statements he made were tainted and inadmissible. We disagree with Siebert’s argument.
A review of the record discloses that Captain Willard Hurst of the Talladega Police Department advised Siebert of his constitutional rights under Miranda before Siebert was questioned in Tennessee. Hurst testified that Siebert stated that he understood his rights and that he was willing to make a statement. Siebert also signed a waiver of rights form before he made the statement. Hurst denied making any promises or threats to induce Siebert to make a statement. However, Hurst testified that when Siebert agreed to make an initial tape-recorded admission, he stated that he would not provide any details of the crime until they returned to Alabama. Hurst testified that the condition Siebert imposed prior to making the statement was acceptable to him.
Contrary to the position Siebert has taken before this Court, the record conclusively shows that Siebert’s statement was not the result of any promise of benefit or inducement on Hurst’s part. Rather, Siebert imposed a condition when he agreed to make an inculpatory statement in Tennessee but refused to provide details until later, and Hurst merely agreed to Siebert’s condition. The record does not support Siebert’s claim that the condition he imposed was tantamount to a promise from Hurst that rendered his statement involuntary.
Assuming that the condition that Siebert would not be questioned about the details of the murders in the statement he gave in Tennessee was, in fact, properly characterized as a promise by Captain Hurst, it did not render Siebert’s inculpatory statement involuntary. The trial court is to determine whether a confession is voluntary, and the “true test is whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor.” Wallace v. State, 290 Ala. 201, 275 So.2d 634, 636 (1973). Furthermore, a confession is not rendered involuntary if it was made in response to a promise of benefit that was solicited by the accused. Thomas v. State, 531 So.2d 45, 48 (Ala.Cr.App.1988); Eakes v. State, 387 So.2d 855, 860 (Ala.Cr.App.1978). Siebert imposed the condition that he not be questioned about details of the crime in the statement he made in Tennessee; this limitation did not originate with Captain Hurst. Therefore, even if the condition is viewed as a promise, it did not affect the admissibility of the statement Siebert made in Tennessee, nor did it taint the subsequent statements Siebert made.
II.
Siebert next argues that the trial court erred in refusing to invalidate his waiver of extradition to Alabama from Tennessee. He contends that he was not advised sufficiently of his right to counsel under the extradition laws or of his right to fight extradition pro se. He further argues that there is no evidence that he understood the rights explained to him or that he understood the importance of signing the waiver of extradition.
Siebert’s contentions are not supported by the record. Roger Parley of the Tennessee Bureau of Investigation testified that Siebert appeared before a Tennessee judge who advised him that he was entitled to a hearing to determine whether he should be returned to Alabama, that counsel would be appointed to represent him if he could not hire an attorney, and that he would be entitled to bond pending such a hearing. Parley testified further that Siebert stated that he understood his rights, that he did not desire counsel, and that he wanted to waive extradition and voluntarily accompany officers from Alabama and return to this state. Siebert also signed a waiver-of-extradition form in Farley’s presence.
Nothing in the record suggests that, at the time Siebert waived his rights, verbally and in writing, he was in any way impaired or that he was not cognizant of his rights or of his waiver of those rights. Accordingly, we find no infringement of Siebert’s constitutional rights in the procedure followed relative to his removal from Tennessee to Alabama. See, Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971), rev’d on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1972).
III.
Siebert’s next argument is that the court erred in admitting into evidence a videotape of the crime scene, which was filmed by the police before the victims’ bodies were removed. Siebert contends that the videotape was prejudicial and that it was cumulative of the photographic evidence also admitted.
Captain Willard Hurst of the Talladega Police Department testified that he went to Sherri Weathers’s apartment on February 24, 1986, the day the victims’ bodies were discovered, which was five days after the victims were murdered. Captain Hurst videotaped the interior of the Weathers apartment before the crime scene was disturbed, and videotaped a portion of the exterior of the apartment building. He testified that he was familiar with the operation of the video camera and that it was in proper working condition on that day. He also stated that the videotape accurately portrayed the scene. The trial court admitted the videotape into evidence and permitted the jury to view it, over the defendant’s objections that the tape was inflammatory, prejudicial, and cumulative, and that the portion of the tape showing the photographs of the family that were hung on the apartment walls had no probative value.
The Court of Criminal Appeals held that the trial court did not err in receiving the videotape into evidence. We •agree. Photographic evidence is admissible in a criminal prosecution if it tends to prove or disprove some disputed or material issue, to illustrate some relevant fact or evidence, or to corroborate or dispute other evidence in the case. Photographs that tend to shed light on, to strengthen, or to illustrate other testimony presented may be admitted into evidence. Chunn v. State, 339 So.2d 1100, 1102 (Ala.Cr.App.1976). To be admissible, the photographic material must be a true and accurate representation of the subject that it purports to represent. Mitchell v. State, 450 So.2d 181, 184 (Ala.Cr.App.1984). The admission of such evidence lies within the sound discretion of the trial court. Fletcher v. State, 291 Ala. 67, 277 So.2d 882, 883 (1973); Donahoo v. State, 505 So.2d 1067, 1071 (Ala.Cr.App.1986) (videotape evidence). Photographs illustrating crime scenes have been admitted into evidence, as have photographs of victims and their wounds. E.g., Hill v. State, 516 So.2d 876 (Ala.Cr.App.1987). Furthermore, photographs that show the external wounds of a deceased victim are admissible even though the evidence is gruesome and cumulative and relates to undisputed matters. E.g., Burton v. State, 521 So.2d 91 (Ala.Cr.App.1987). Finally, photographic evidence, if relevant, is admissible even if it has a tendency to inflame the minds of the jurors. Hutto v. State, 465 So.2d 1211, 1212 (Ala.Cr.App.1984).
The prosecution established the proper foundation here, and there was no question about the videotape’s authenticity. Based on a review of the relevant case law, we find no abuse of discretion in the trial court’s admission of the videotape into evidence.
IV.
At Siebert’s June 18, 1987, sentencing hearing, the trial court admitted into evidence a minute entry from the Circuit Court of Talladega County documenting his March 1987 capital conviction for murder during the course of a first degree robbery. The conviction was admitted as an aggravating circumstance pursuant to Code 1975, § 13A-5-49(2), which states as an aggravating circumstance the fact that “[t]he defendant was previously convicted of another capital felony or a felony involving the use or threat of violence to the person .... ” Siebert objected at trial and on appeal to the admission of the minute entry on grounds that, because he allegedly committed the murder/robbery at approximately the same time he allegedly committed the crimes charged here, it was illogical to allow evidence of the murder/robbery conviction into evidence as a “prior” conviction.
In essence, Siebert’s argument appears to be that under § 13A-5-49(2), only convictions obtained prior to the commission of the crime for which the defendant is being sentenced are admissible.
This argument directly contradicts the relevant Alabama statute. Code 1975, § 13A-5-39(6), provides:
“PREVIOUSLY CONVICTED AND PRIOR CRIMINAL ACTIVITY. As used in sections 13A-5-49(2) and 13A-5-51(1), these terms refer to events occurring before the date of the sentence hearing.”
The Talladega County conviction was obtained before the sentencing hearing was held in this case. Therefore, according to the plain language of the statute, the minute entry was properly admitted into evidence, and Siebert’s allegation of error must fail. We have considered the petition, the briefs, and the opinion of the Court of Criminal Appeals. Furthermore, we have made an independent, thorough examination of the record for errors or defects in the proceedings that adversely affected the rights of the defendant. Having done so, we are of the opinion that the judgment of the Court of Criminal Appeals upholding Siebert’s conviction and death sentence is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
Ex parte Danial L. SIEBERT. (Re Danial L. Siebert v. State of Alabama).
89-269.
Supreme Court of Alabama.
March 30, 1990.
Rehearing Denied May 4, 1990.
William J. Willingham, Talladega, for petitioner.
Don Siegelman, Atty. Gen., and Mary Ellen Forehand and William D. Little, Asst. Attys. Gen., for respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
We have carefully considered the petition for review of the opinion and judgment of the Court of Criminal Appeals affirming Danial L. Siebert’s conviction of the capital murder of Linda Jarman and his sentence of death; additionally, we have made an independent and thorough review of the entire record of trial, including the bifurcated sentencing hearing. We find no error or defect in the proceedings that adversely affected the rights of the defendant. Therefore, the judgment of the Court of Criminal Appeals upholding Siebert’s conviction and death sentence is due to be, and it hereby is, affirmed. For a full statement of the facts, the issues presented, and the disposition thereof by the Court of Criminal Appeals, see its opinion in Siebert v. State, 562 So.2d 586 (Ala.Crim.App.1989); see, also, Ex parte Siebert, 555 So.2d 780 (Ala.1989) (reviewing many of the same issues presented here and affirming Siebert’s conviction and death sentence for the capital murders of Sherry Weathers and her two sons).
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
Daniel Lee SIEBERT v. STATE.
CR-98-0868.
Court of Criminal Appeals of Alabama.
Dec. 30, 1999.
Lajuana Sharonne Davis, Montgomery; and Jeffrey Glen, New York City, New York, for appellant.
Bill Pryor, atty. gen.; and Jeremy W. Armstrong and James R. Houts, asst, attys. gen., for appellee.
[OPINION BY COBB, Judge. type=majority]
COBB, Judge.
Daniel Lee Siebert appeals from the circuit court’s denial of his two petitions for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. The petitions, which the circuit court consolidated for review, challenged two capital murder convictions and sentences of death by electrocution.
On September 11, 1986, the Talladega County grand jury returned two indictments against Daniel Siebert, each charging capital murder. One indictment concerned the deaths of Siebert’s 24-year-old hearing-impaired girlfriend, Sherri Weathers, and her two sons, five-year-old Chad Weathers, and four-year-old Joseph Weathers. The other indictment concerned the death of Sherri Weather’s hearing-impaired friend and next door neighbor, Linda Jarman. On March 19, 1987, Siebert was convicted in the Talladega County Circuit Court for the capital murder of Linda Jarman (hereinafter referred to as “the Talladega County case”). This murder was made capital because it occurred during the course of a robbery, § 13A-5-40(a)(2), Ala.Code 1975. On April 17, 1987, the trial court followed the jury’s recommendation and sentenced Siebert to death.
Because of the pretrial publicity the trial court granted Siebert’s motion for a change of venue as to the charges contained in the indictment charging Siebert with the killing of the Weathers family. Thus, Siebert’s capital prosecution for the murder of Sherri Weathers and her two young sons was transferred to Lee County. (That case is hereinafter referred to as “the Lee County case.”) Judge William C. Sullivan, who presided over the Talladega County case, also presided over the Lee County case. On June 18, 1987, Siebert was convicted of murder made capital pursuant to § 13A-5-40(a)(10), Ala.Code 1975, because two or more persons were murdered pursuant to one scheme or course of conduct. On August 19, 1987, following the jury’s recommendation, the trial court sentenced Siebert to death by electrocution.
The Alabama Court of Criminal Appeals affirmed the conviction and the sentence in the Lee County case. Siebert v. State, 555 So.2d 772 (Ala.Cr.App.1989). The Alabama Supreme court affirmed the conviction, Ex parte Siebert, 555 So.2d 780 (Ala. 1989), and the certifícate of final judgment was issued on January 3, 1990. The United States Supreme court denied certiorari review. Siebert v. Alabama, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). Siebert’s conviction and death sentence in the Talladega County case was affirmed on direct appeal in Siebert v. State, 562 So.2d 586 (Ala.Cr.App.1989). The Alabama Supreme court affirmed the conviction, Ex parte Siebert, 562 So.2d 600 (Ala.1990), and the certificate of judgment was issued on May 22, 1990. The United States Supreme Court denied certiorari review. Siebert v. Alabama, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 408 (1990).
Siebert filed a Rule 32 postconviction petition in each case, seeking relief from his convictions and sentences of death. Judge Sullivan presided over the Rule 32 proceedings. The petitions were filed in Lee County on June 30, 1992, and in Talladega County on August 25, 1992. Numerous claims were presented in each petition. The prosecution filed answers to these petitions on October 14, 1992 (the Talladega County case), and on July 27, 1992 (the Lee County case). Siebert’s petitions were consolidated for an evidentiary hearing. Siebert subsequently filed amendments to both petitions on March 29, 1995, and the circuit court accepted the amendments. The hearing on the petitions began on April 3,1995, and continued through April 5, 1995. The prosecution filed a written response to the amended petitions on April 4, 1995. In this amended response, the prosecution requested for the first time that the petitions be denied pursuant to Rule 32.2(c) because the two-year limitations period allowed for filing a Rule 32 petition had expired. Out of an abundance of caution, the circuit court continued to hear Siebert’s arguments. Additional evidence was received by the circuit court on September 26, 1995, and on January 21, 1997. The prosecution submitted an 87 page memorandum opinion to the circuit court with proposed findings of fact and conclusions of law disposing of the claims in the petitions as procedurally barred, but nonetheless also disposing of these claims on their merits. On December 29, 1998, after considering all the evidence and independently evaluating each claim, the circuit court adopted the State’s proposed memorandum opinion as its final judgment, denying Siebert the relief requested in his petitions.
The attorney general argues on appeal that the circuit court should not have addressed at the Rule 32 hearing the procedurally barred claims on the merits. See, State v. Whitley, 665 So.2d 998 (Ala.Cr. App.1995). We agree. Because almost every claim Siebert presents is procedurally barred, we decline to address the circuit court’s ruling insofar as it discusses the merits of his claims. Whitley, supra.; (“The State argues on appeal that the trial court should never have addressed the merits of the juror’s failure to answer the voir dire question because this ground was procedurally barred. We agree with the State that this ground should have been, but was not, raised on appeal and it is therefore precluded under Rule 32.2(a)(5), Ala.R.Crim.P.” 665 So.2d at 1001). However, we note that pursuant to Rule 45A, Ala.R.App.P., this court searched the entire transcript of each trial on direct appeal for error without regard to preservation or whether it was presented on appeal. Nothing was found to merit reversal of Siebert’s conviction. Moreover, we also note that we have evaluated the evidence presented at the evidentiary hearing on Siebert’s Rule 32 petition, and we conclude that Siebert received a fair trial and that the trial court correctly denied the petition.
The initial issue presented by Siebert on appeal from the denial of his Rule 32 petition is whether the circuit court correctly held that the petitions were barred from postconviction review by Rule 32.2(c) because they were filed beyond the two-year limitations period. Rule 32.2(c) provides that, with certain exceptions, a postconviction petition must be filed within two years from the issuance by the Court of Criminal Appeals of the certificate of final judgment. In cases such as the present case, where a petition is filed requesting certiorari review by the Alabama Supreme Court, the Court of Criminal Appeals issues a final judgment on the date the Alabama Supreme Court completes its certiorari review and issues a final decision in the case. In this case, the certificate of judgment in the Talladega County case was issued on May 22, 1990. Pursuant to Rule 32.2(c), Siebert’s petition, filed August 25j 1992, was untimely. The certificate of judgment in the Lee County case was issued on January 3, 1990. Pursuant to Rule 32.2(c), Siebert’s petition filed on June 30, 1992, was untimely.
Siebert argues on appeal that his petition should not be barred by the two-year limitations period in Rule 32.2(c) for the following reasons:
1. Rule 32.2(c) is not jurisdictional and failure to comply with it does not require dismissal of Siebert’s petition.
a. The form of Rule 32 demonstrates that Rule 32.2(c) is not jurisdictional.
b. Rule 32.2(c) must be timely raised as an affirmative defense.
2. The State waived this affirmative defense by failing to raise it in its first responsive pleading.
, 3. The limitations period does not begin to run until a defendant’s conviction is final, which he says this court has determined to be when the United States Supreme Court denies certiorari.
4. Courts have the discretion in Rule 1.3(b) of the Alabama Rules of Criminal Procedure to enlarge the time for filing a Rule 32 petition.
In every appeal from the denial of post-conviction relief under Rule 32 in a death-penalty case, this court has held that the plain-error rule does not apply in Rule 32 proceedings and that the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992); Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994); Neelley v. State, 642 So.2d 494, 496 (Ala.Cr.App.1993), cert. quashed, 642 So.2d 510 (Ala.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App.1993); Davis v. State, 720 So.2d 1006, 1013 (Ala.Cr.App.1998); Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995); Horsley v. State, 675 So.2d 908 (Ala.Cr.App.1996); Grayson v. State, 675 So.2d 516 (Ala.Cr. App.1995), cert. denied, 519 U.S. 934, 117 S.Ct. 309, 136 L.Ed.2d 225 (1996); Payne v. State, [Ms. CR-97-2503, July 9, 1999] — So.2d - (Ala.Cr.App.1999); Boyd v. State, 746 So.2d 364 (AIa.Cr.App.1999); Lawhorn v. State, 756 So.2d 971 (Ala.Cr.App.1999); Jones v. State, 753 So.2d 1174 (Ala.Cr.App.1999).
Therefore, Siebert’s arguments are not well taken. Claims l.a. and l.b., asserting that Rule 32.2(c) is not jurisdictional, were presented for the first time on appeal. Therefore, these claims are procedurally barred from appellate review. Wilkerson v. State, 686 So.2d 1266, 1277 (Ala.Cr.App.1996) (“this claim is procedurally barred from appellate review” because it is raised for the first time on appeal).
Claim 2, asserting that Rule 32.2(c) must be raised as an affirmative defense in the first responsive pleading or it is waived, is without merit. Siebert relies on Howard v. State, 616 So.2d 398 (Ala.Cr.App.1993), and Jackson v. State, 612 So.2d 1356 (Ala.Cr.App.1992), in support of this claim. This case, however, is distinguishable from both Howard and Jackson. In Howard and Jackson, the State argued for the first time on appeal that the petition was barred by the two-year limitations period. Moreover, in Jackson, this court did not have to determine whether the State had waived the time bar by failing to plead it because the circuit court had correctly denied the petition on the merits.
In the present case, Siebert filed a motion to amend his petitions on March 29, 1995, five days before the evidentiary hearing. On April 4, 1995, the second day of the hearing but the sixth day after Siebert filed his amended petitions, the State filed an amended answer claiming that the petitions were barred by limitations period. We agree with the circuit court, which stated:
“The State’s response placed Siebert on notice within seven days after Siebert filed his amended petitions. If Siebert can file amendments to his petition and have those amendments relate back to the original petition, the State can file an answer to those amendments and have it relate back to the original answer (the initial responsive pleading). Siebert had timely notice of the State’s intention to rely on the statute of limitations defense and the State did not waive the statute of limitations defense.”
C.R: 879-80. This court, in Garrett v. State, 644 So.2d 977, 980 (Ala.Cr.App.1994), held that “an ‘amended petition’ relates back to the date of the filing of the original petition provided the amended petition is filed within a reasonable time.” This holding is in complete accord with Rule 32.7(b), Ala.R.Crim.P., which states: “Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment,” and with Rule 32.7(d), which states: “Leave to amend shall be freely granted.” The granting or denial of a motion to amend a Rule 32 petition is within the sound discretion of the trial court, whose ruling on such a motion will be reversed only for an abuse of discretion. Neelley v. State, 642 So.2d 494, 497 (Ala.Cr.App.1993).
Moreover, notwithstanding the requirement of Rule 32.3 that the State “shall have the burden of pleading any ground of preclusion,” this court has repeatedly stated that “[wjhere a simple reading of a petition for post-conviction relief shows that, assuming the allegations of the petition to be true, it is obviously without merit or is precluded, the trial court may summarily dismiss the petition without requiring any response from the state.” Burton v. State, 728 So.2d 1142, 1148 (Ala.Cr.App.1997) (citing Bishop v. State, 608 So.2d 345 (Ala.1992), and Patty v. State, 652 So.2d 337 (Ala.Cr.App.1994)) (emphasis added). Thus, the trial court could have dismissed the petition on procedural grounds even without any response from the State.
Claim 3, asserting that the limitations period does not begin to run until a defendant’s conviction is final, which this court has determined to be when the United States Supreme Court denies certiorari, is without merit. We agree with the circuit court’s ruling that, for purposes of seeking postconviction relief, “[i]t is clear from Rule 32.2(c) of the Alabama Rules of Criminal Procedure and Rule 41(b) of the Alabama Rules of Appellate Procedure that Siebert’s conviction was final on the date the Alabama Court of Criminal Appeals issued the certificate of judgment in both [cases].” C.R. 880.
Rule 32.2(c), Ala.R.Crim.P., states:
“[T]he court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within two (2) years' after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala.R.App.P.”
Rule 41(b), Ala.R.App.P., states:
“The timely filing of a petition for certiorari in the Supreme Court shall stay the issuance of the certificate of judgment by the courts of appeals, which stay shall continue until the final disposition by the Supreme Court. Upon the filing of a copy of an order of the Supreme Court denying the petition for certiorari, the certificate of judgment of the courts of appeals shall issue immediately. If the time for the issuance of the certificate of judgment shall have been shortened pursuant to subdivision (a) hereof, the courts of appeals shall grant such relief, upon motion, as may be appropriate.”
' The plain language of the Rules and the applicable caselaw provide that a Rule 32 petition must be filed within two years from the date the Court of Criminal Appeals issues the certificate of final judgment.
Claim 4, asserting that Rule 1.3(b) (“excusable neglect”) of the Alabama Rules of Criminal Procedure gives courts the authority to enlarge the time for filing a Rule 32 petition, is without merit. Siebert claims excusable neglect because, he says, he did not receive a copy of the certificates of judgment and because there is some ambiguity concerning the starting date for the running of the limitations period of Rule 32.
Rule 1.3(b), Ala.R.Crim.P., provides:
“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect, but it may not, except as provided elsewhere in these rules, extend the time for making a motion for new trial, for taking an appeal, or for making a motion for a judgment of acquittal pursuant to Rule 20.”
In this case, the circuit court specifically held: “This Court holds that the untimely filing of Siebert’s Rule 32 petitions is not the result of excusable neglect. This Court chooses not to entertain Siebert’s Talladega County and Lee County Rule 32 petitions due to the untimely filing of both petitions.” C.R. 881. The application of Rule 1.3(b) is discretionary with the circuit court. In this case, the circuit court chose not to entertain the late petitions. That decision was not an abuse of discretion for the following reasons. The facts that Siebert either did not have counsel in his Rule 32 petitions or that counsel did not know the time limitations imposed by the rule are not excusable neglect. First, “neither the Due Process Clause of the Fourteenth Amendment nor the equal protection guarantee of ‘meaningful access’ require[ ] the State to appoint counsel for indigent prisoners seeking postconviction relief.” Murray v. Giarratano, 492 U.S. 1, 2, 109 S.Ct. 2765, 106 L.Ed.2d 1, (1989) (holding that Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), applies to inmates under a sentence of death as well as to other inmates). Second, “ ‘[generally, parties acting pro se should be treated as parties represented by counsel are treated.... In particular, pro se litigants “must comply with legal procedure and court rules.” ’ ” Wilson v. State, 659 So.2d 152, 158 (Ala.Cr.App.1994)(quoting Boros v. Baxley, 621 So.2d 240, 243-44 (Ala.1993)). Third, as stated above, the procedural bars of Rule 32 apply to cases in which the death penalty has been imposed. Thompson v. State, 615 So.2d 129 (Ala.Cr.App.1992). Moreover, we note that Rule 1.3(b) specifically prohibits extending the time for a motion for new trial, for filing an appeal, or for a motion for a judgment of acquittal pursuant to Rule 20 — all postconviction proceedings, like a Rule 32 petition.
Because the petitions were filed outside of the limitations period, only the following claims can be reviewed: claims concerning the circuit court’s jurisdiction to render judgment and impose sentence; claims showing that the sentence exceeds the maximum authorized by law or is otherwise unauthorized by law; claims showing that Siebert is being held in custody after the expiration of his sentence; or claims showing that newly discovered evidence was timely presented.
The circuit court correctly held that the following claims presented on appeal are barred by the limitations period. Although only one ground is necessary to bar review of a postconviction petition,'the circuit court also correctly held that the following claims are barred because they either were addressed at trial and on direct appeal, Rules 32.2(a)(2) and (4), or they could have been raised at trial and then challenged on direct appeal. Rules 32.2(a)(3) and (5). Rule 32 is not a substitute for a direct appeal. State v. Land, 775 So.2d 840 (Ala.Cr.App.1998). According to Siebert, the following claims apply to both cases unless otherwise specified.
I. The expert psychiatric assistance afforded to Siebert by the Court in the Talladega County case failed to provide the protections guaranteed by the Fourteenth Amendment right to due process.
I.A. Siebert was denied due process when his expert turned over his psychiatric evaluation to the prosecution.
I.A.1. Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), mandates that a defendant receive access to a competent psychiatrist to assist him in his defense if sanity will be a significant issue at trial.
I.A.2. Dr. Eisenhardt (a psychiatric expert) did not assist in the evaluation, preparation, and presentation of the defense as required by Ake.
I.A.3. Dr. Eisenhardt’s evaluation of Siebert did not constitute an “appropriate” examination under Ake.
I.B. There is no substantive difference between the facts presented by Ford v. Gaither, 953 F.2d 1296 (1992), Cowley v. Stricklin, 929 F.2d 640 (1991), and Smith v. McCormick, 914 F.2d 1153 (1990), and the facts of Siebert’s case.
II. Siebert was denied effective assistance of counsel in both cases because defense counsel relianced on Dr. Eisenhardt’s testimony as the only evidence of mitigating factors.
III. Siebert’s right against self-incrimination was violated in both cases.
IV. Alabama Rule of Criminal Procedure, 16.2(c) is unconstitutional.
V. Failure of defense counsel to present the testimony of V.O. deprived Siebert of his right to effective assistance of counsel.
VI. Trial counsel failed to investigate Siebert’s background, and failed to conduct in-depth interviews with family members or to otherwise develop evidence relevant to an appropriate punishment.
VII. The trial court’s guilt-innocence phase jury instructions violated state and federal law and undermined the reliability of Siebert’s convictions and sentences.
VILA. Siebert’s Lee County jury was not instructed on the meaning of a critical element of Siebert’s charge.
VII.B. Both Siebert’s Talladega and Lee County juries were informed that only a portion of his statement to the police was presented because the remaining parts were legally inadmissible.
VII.C. The trial court in Lee County instructed Siebert’s jury that it had to reconcile all of the testimony.
VII.D. Both Siebert’s Talladega and Lee County juries received erroneous charges on reasonable doubt.
VII.E. The trial court’s instructions implied to Siebert’s penalty phase juries that death must be presumed to be the appropriate sentence. This instruction reinforced the prosecution’s argument to presume death.
VII.F. The penalty phase jury instructions failed to inform the jurors that they could find the existence of mitigating circumstances without a unanimous vote.
VIII. The prosecutor’s misconduct and arguments before and during the guilt-innocence phase of Siebert’s trials deprived him of rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and by the Alabama Constitution.
VILLA. The prosecutor argued that Mr. Siebert should be convicted because he would commit future illegal acts.
VIII.B. ■ The prosecution improperly argued the underlying facts of Siebert’s prior offense.
VIII.C. Throughout Siebert’s trials, the prosecution improperly referred to other crimes allegedly committed by Siebert that had no connection to the crime charged.
VIII.D. The prosecution elicited inadmissible direct examination testimony in an effort to enhance its key witness’s credibility.
VIII.E. The prosecution vouched for a witness’s credibility during closing argument and thereby denied Siebert a fair trial and violated his rights under Alabama Law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
VIII.F. During the guilt phase closing arguments, the district attorney urged the jury that Siebert must be guilty since his charge resulted from the work of various law enforcement agencies and that he knew Siebert was guilty.
VIII.G. The prosecution’s adverse comment on Siebert’s choice not to testify violated his rights under Alabama law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
VIII.H. Victim-impact evidence violated Siebert’s rights as guaranteed by Alabama law, The Alabama Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
VIII.I. The prosecution’s pleas that Siebert should receive death because of victims’ characteristics were impermissible under Alabama Law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
VIII.J. The State elicited highly inflammatory testimony on matters wholly irrelevant to the charges against Siebert.
VIII.K. The prosecution argued to the guilt phase jury that it is proper to infer that a defendant intends the natural consequences of his acts.
IX. The prosecutor’s misconduct and arguments before and during the penalty phases of Siebert’s trials deprived him of rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and by the Alabama Constitution.
IX.A. The prosecution argued to Siebert’s penalty phase jury that it should presume death to be the appropriate sentence.
IX.B. The prosecutor argued to the Talladega penalty phase jurors that Siebert’s trial counsel had lied to and misled them.
IX.C. The prosecution relied on facts not in evidence in arguing to Siebert’s penalty phase jury that death was the appropriate sentence and thereby denied Siebert his rights guaranteed by Alabama law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
IX.D. The prosecution illegally argued that Siebert should be sentenced to death because his offense was heinous, atrocious or cruel despite inapplicability of that aggravating circumstance.
IX.E. The prosecution argued to Siebert’s penalty phase jury that his sentence should be decided on the basis of the underlying offense alone and to the exclusion of his moral culpability in violation of his rights under Alabama law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United State’s constitution.
IX.F. The State introduced numerous highly inflammatory photographs and inflammatory videotapes.
IX.G. The prosecution improperly suggested to the empaneled jurors that two of their number were alternates.
X. In both the Talladega County case and the Lee County case, the evidence supporting the aggravating circumstance that the defendant had previously been convicted of a violent felony was improperly considered.
XI. The Court’s penalty-phase orders demonstrate that Siebert’s sentence of death is illegal and unconstitutional.
XI.A. In sentencing Siebert to death the trial court failed to find various undisputed mitigating circumstances, in violation of Siebert’s rights under Alabama Law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XI.B. Siebert’s death sentence rests on non-statutory aggravating circumstances in violation of his rights under Alabama law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XI.C. The trial court double counted a single aggravating circumstance in violation of Siebert’s rights under Alabama law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XII. Siebert’s conviction and death sentence in the Lee County case cannot stand because they are based on a duplicitous indictment, in violation of Alabama law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XIII. Siebert’s Lee County trial was “poisoned” by emotional outbursts.
XIV. The trial court’s reliance on the presentence investigation report admitted into evidence in sentencing Siebert to death violated Siebert’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Alabama law.
XIV.A. Both in the Lee County and Talladega County trials Siebert’s presentence investigation report improperly included various incriminating admissions by Siebert, in violation of Alabama law and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XIV.B. In both eases, the presentence reports contained impermissible references to Siebert’s juvenile record.
XIV.C. In both cases, the probation officer offered improper statements regarding her view and the community opinion that Siebert should receive the death penalty. These recommendations denigrated the jury’s statutory role in recommending punishment.
XV. The trial court made other errors when sentencing Siebert to death.
XV.A. In both cases, the trial court failed to follow the law when determining sentence.
XV.B. Separating the jury without first ensuring that Siebert adequately understood his right to demand sequestration violated Siebert’s rights under Alabama law and under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XV.C. Failure to instruct the penalty phase jury on how to determine when the factual existence of a mitigating circumstance is placed in dispute violated Siebert’s rights under Alabama law and under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
XVI.It was error for the trial court to deny Siebert’s claims that he was denied effective assistance of counsel during both of his capital proceedings.
XVI.A. Siebert specifically incorporates prior sections of this brief to establish his claims of ineffective assistance of counsel.
XVI.B. Counsel failed to ensure that Siebert adequately understood that he had the right to a sequestered jury.
XVLC. Trial counsel rendered ineffective assistance of counsel when they failed to object to prosecutorial misconduct at Siebert’s trials. Direct appeal counsel was ineffective for failing to raise these claims on appeal.
XVI.D. Trial counsel failed to object to improper victim impact testimony, arguments and outbursts.
XVI.E. Counsel failed to adequately challenge the use of prior convictions at Siebert’s trials.
XVI.F. Counsel did not raise at trial or on appeal the improper statements, admissions and recommendations included in the presentence investigation report.
XVI.G. Counsel failed to challenge the trial court’s failure to find mitigating circumstances.
XVI.H. The trial court’s improper sentencing order was not challenged at trial or on direct appeal.
XVI.I. Former counsel did not challenge the multiplicious indictment against Siebert.
XVI.J. Trial counsel failed to object to erroneous instructions given by the trial court at the guilt/innocence phase.
XVI.K. Siebert’s counsel did not insist upon adequate jury instructions.
XVLL. Appellate counsel rendered ineffective assistance of counsel when they failed to raise and preserve for review the claims presented in Siebert’s petition.
Siebert presents the following claims as newly discovered evidence.
Siebert claims that several members of his Talladega County jury failed to reveal during voir dire crucial information that suggested that these jurors were potentially biased against Siebert and that they held preconceived beliefs regarding Siebert’s particular case and death-penalty cases in general that deprived Siebert of his right to due process, a fair trial, and a reliable sentencing determination.
The trial court correctly ruled that Siebert’s jury misconduct claims are barred from Rule 32 review by Rule 32.2(a)(3) and (5) because these claims could have been, but were not, raised at trial and on direct appeal. Siebert relies on State v. Freeman, 605 So.2d 1258 (Ala.Cr.App.1992), to assert that this claim is not procedurally barred. Brown v. State, [Ms. CR-98-0343, October 1, 1999] — So.2d -, - (Ala.Cr.App.1999), overruled Freeman and states that: “[b]efore a claim of juror misconduct may be addressed on the merits in a postconviction petition the petitioner must meet the requirements of newly discovered evidence contained in Rule 32.1(e), Ala.R.Crim.P.” This ruling is consistent with Holladay v. State, 629 So.2d 673 (Ala.Cr.App.1992), an opinion released the same year as Freeman, wherein “this court held that we could not consider a claim of juror misconduct because there was no evidence that this claim could not have been raised on direct appeal.” Brown, — So.2d at - (citing Holladay). In order to be considered newly discovered evidence, the evidence must meet each of the criteria set forth in Rule 32.1(e)(1) through (5), Ala. R.Crim.P.
“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
“(1) The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post-trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
“(2) The facts are not merely cumulative to other facts that were known;
“(3) The facts do not merely amount to impeachment evidence;
“(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
“(5) The facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.”
Siebert did not plead sufficient facts to establish that his jury misconduct claims amounted to newly discovered evidence. Thus, the claim fails to satisfy either the burden of proof requirements of Rule 32.3, Ala.R.Crim.P., or the specificity requirements of Rule 32.6(b), Ala.R.Crim.P. Because the claim cannot be considered newly discovered evidence, the trial court correctly ruled that the claims are barred by Rules 32.2(a)(3) and (5).
Siebert claims as newly discovered evidence that the prosecution failed to turn over to the defense statements made by a key witness, S.L., in the trial of the Talladega County case, which violated Siebert’s rights, and requires a new trial. The trial court ruled as follows on this claim.
“Siebert alleged the following in claim III of the amendment to his Rule 32 petition:
“‘Mr. Siebert’s rights to discovery-under former Rule 18, Alabama Rules of Criminal Procedure (Temporary) and his right to confrontation and to due process under the Federal and State Constitution, as interpreted by the Supreme Court of Alabama in Ex parte Monk, 557 So.2d 832 (1989), were violated.
“ ‘The crux of the defense in this case was the contention that Linda Jarman, was not killed in the course of a first degree robbery [, because Siebert had permission from the victim to use the victim’s vehicle before her death].
“‘A critical aspect of the evidence adduced by the State on the issue of defendant’s intent to rob [the victim] of her car was S.L./s testimony.’
“Although this Court holds that this claim procedurally is barred, in the alternative, it will address the merits. S.L., a neighbor of Siebert’s, who lived in the Porter, building, testified that he saw Siebert on the night of the murder loading trash bags, filled with some of the victim’s ‘stuff,’ into the victim’s vehicle. (TR. 213)[]. Siebert informed L. he had borrowed the victim’s vehicle, he and the victim had a fight, and he was returning some of the victim’s belongings to her. (TR. 213-14.) The evidence L. presented to the jury initially developed during a fourth interview conducted by the Talladega Police Department on April 25, 1986. Siebert contends that the State improperly withheld three sets of notes from previous interviews with L. which were required to be disclosed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and
Ex parte Monk, 557 So.2d 832, 835 (Ala.1989). Siebert contends that three sets of interview notes with L. never mentioned the encounter L. had with Siebert on the eve of the murder. Siebert contends that ‘[without the [previous] statements, defense counsel could not follow-up his attack on Mr. L.’s credibility.’
“Siebert had the burden of pleading and proving this claim by a preponderance of the evidence at the evidentiary hearing. See, Rule 32.3, Alabama Rules of Criminal Procedure; see also, Fortenberry v. State, 659 So.2d 194 (Ala.Cr.App.1994) cert. denied, [516 U.S. 846,] 116 S.Ct. 137 (1995). Siebert presented no credible evidence in support of this claim at the evidentiary hearing. Therefore, this claim of the petition is due to be denied.”
C.R. 888-89.
This claim fails to establish newly discovered evidence. Siebert did not establish the criteria required under Rule 32.1(e). Therefore, the claim is barred by the two-year limitations period and because it should have been raised at trial and on direct appeal. Rule 32.2(a)(3) and (5), and Rule 32.2(c). Moreover, the circuit court’s ruling that “Siebert presented no credible evidence in support of this claim at the evidentiary hearing,” is supported by the record. Siebert did not prove at the Rule 32 hearing that the State suppressed any exculpatory documents.
Siebert also claims that the prosecution failure to turn over mitigating evidence material to the sentencing phase of Siebert’s trials is newly discovered evidence. The trial court ruled as follows on this claim.
“Siebert alleged the following in claim IV of the amendment to his Rule 32 petition:
“ ‘Mr. Siebert’s right to present mitigating evidence pursuant to Ala.Code §§ 13A-5-51, 13A-5-52, and the Eighth and Fourteenth Amendments to the U.S. Constitution, and his right to due process under the U.S. and Alabama Constitutions, were violated because the prosecution failed to turn over evidence and other materials which could have been presented to the jury as mitigating factors at Mr. Siebert’s sentencing phase of his trial as required under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).’
“Although this Court holds that this claim is procedurally barred, in the alternative, it will address the merits. Siebert claims the prosecution withheld evidence of Siebert’s ‘drug use and physical abuse which would have corroborated the testimony of Dr. Otto Eisenhardt regarding the personal history communicated to him by Siebert.’ Eisenhardt testified that the only evidence he had of Siebert’s drug use and physical abuse was that provided by Siebert himself. (T.R. 774.) Siebert contends that, if the withheld information had been provided, Eisenhardt’s testimony would have been bolstered; creating a reasonable probability the jury would not have imposed the death penalty.
“Rod Giddens, one of Siebert’s defense attorneys, testified at the Rule 32 evidentiary hearing that Eisenhardt’s report did contain information about Siebert’s alcohol, physical, and sexual abuse. (R. 38.) Giddens was aware of information concerning Siebert’s sexual and physical abuse before obtaining Eisenhardt’s report. (R. 77.) Giddens felt there was nothing else to pursue for a mental health defense for the guilt or penalty phase. In addition, Giddens felt it was not a good idea to present evidence of Siebert’s drug abuse as mitigation. (R. 101.)
“Siebert states in paragraph 25 of his amendment to his Rule 32 petition that ‘the prosecution failed to disclose to defense counsel documents material to Siebert’s punishment phase of his trial.’ Siebert did not state in his petition or at the evidentiary hearing what documents the prosecution failed to disclose. Giddens testified he had no knowledge of any information that was withheld by the district attorney during the discovery process. (R. 89.) Likewise, George Sims, Siebert’s other defense attorney, testified he did not remember asking for anything which the district attorney had which was not turned over. (R. 125.) Siebert had the burden of pleading and proving this claim by a preponderance of the evidence at the evidentiary hearing. See, Rule 32.3, Alabama Rules of Criminal Procedure. Siebert presented no credible evidence in support of this claim at the evidentiary hearing. This claim of the petition is therefore due to be denied.”
C.R. 890-91.
This claim fails as newly discovered evidence. Siebert did not establish the criteria required under Rule 32.1(e). Therefore, the claim is barred by the two-year limitations period and because it should have been raised at trial and on direct appeal. Rules 32.2(a)(3) and (5), and Rule 32.2(c). Moreover, the circuit court’s ruling that “Siebert presented no credible evidence in support of this claim at the evidentiary hearing” is supported by the record. Siebert did not prove at the Rule 32 hearing that the State suppressed any documents that contained exculpatory material.
Siebert’s Rule 32 petitions are due to be denied for the reasons set forth above.
AFFIRMED.
LONG, P.J., and McMILLAN and FRY, JJ., concur.
BASCHAB, J., concurs in result only.
An overview of the facts are presented below. A full statement of the facts are contained in this court’s opinions on direct appeal. See, Siebert v. State, 555 So.2d 772 (Ala.Cr.App.1989)(Weathers case); Siebert v. State, 562 So.2d 586 (Ala.Cr.App.1989)(Jarmin case). The Weathers case: In late December 1985, D.H. left Los Angeles, California, driving east. H. was going to Talladega, Alabama, where he was to operate a theater program at the Alabama Institute for the Deaf and Blind (hereinafter referred to as the Institute). In Tucson, Arizona, H. picked up a man who identified himself as Danial Spence. H. identified the appellant as that man. H. was impressed with appellant's artistic talent and asked him to come to Talladega and work with the theater program as a set designer. Appellant agreed. H. and appellant parted company just north of Jackson, Mississippi. Appellant was hitchhiking north to Illinois to visit his parents. H. arrived in Talladega on January 9, 1986. Appellant arrived there on January 20, 1986. "H. and appellant first shared an apartment at the Institute, then moved into another apartment in the Porter Building approximately a week and a half later.... Shortly after the two men moved into the Porter Building, appellant began dating Sherri Weathers, a 24-year-old deaf student at the Institute. Because such a relationship was specifically prohibited by the Institute’s rules, H. wished to separate himself from this situation, and moved out of the Porter Building apartment on February 16, 1986. H. and appellant saw each other for the last time on February 19, 1986, when H. arranged to pick up appellant around 8:00 a.m. the next morning to attend a faculty meeting. When H. went by the Porter Building the next morning, however, appellant was not there. "In February 1986, Sherri Weathers was living in apartment 30 of the Sunrise Apartments with her sons, five-year-old Chad and four-year-old Joey. Around 8:00 p.m. on February 19, 1989, appellant was seen with Sherri Weathers and a neighbor of hers, Linda Jarman, buying beer at a convenience store in Talladega. The three left the convenience store together. F.P., a neighbor of Sherri’s, returned home around 9:30 p.m. that night and found a note from Sherri asking him to come over and play cards with her, Linda Jarman, and appellant. P. went over to Sherri’s apartment around 10:30 p.m., where he found Sherri and Linda chatting. They told P. that appellant had left in Linda’s car, a cream-colored Buick, to get some beer, and said they all were going to play cards when appellant returned. P. remained at the apartment until about 11:30 or midnight. When he left to go back to his apartment, appellant still had not returned. "Sometime during the night of February 19, 1986, C.S., who lived next door to Sherri Weathers in apartment 31 of the Sunrise apartments, heard through her wall adjoining Sherri's apartment a man saying 'Come to me. You can join your mother.’ Later, she heard the man say, ‘Come on and you will be with your mother and your brother.' "B.K., another resident of the Sunrise Apartments, saw Sherri Weathers fighting with appellant in her apartment on the night of February 19, 1986. When asked what time he observed them fighting, B.K., a mildly retarded deaf man, could only say that it was sometime after 8:00 p.m., the time he arrived home. By Sunday, February 23, 1986, B.K. had not seen Sherri or her children around the apartments. Remembering the fight he had seen between Sherri and appellant in her apartment on Wednesday night, B.K. tried to check on Sherri, but could summon no one to the door of apartment 30. By this time B.K. was extremely concerned about the welfare of Sherri and her children, so he entered Sherri’s apartment through an unsecured window, but when he saw a part of Sherri’s body protruding out from under a sheet, he became scared and left. B.K. was later cleared by the police of any involvement in the murders. "The next morning, however, B.K. told Wanda Hunley, an Institute social worker, that he was concerned about Sherri and asked her to check on Sherri and her sons. After making several phone calls, she learned that no one had seen Sherri or her children in several days. She also learned that there was an odor emanating from apartment 30. Ms. Hunley, accompanied by several other individuals, then went to the Sunrise Apartments and obtained a passkey for apartment 30. Upon entering the apartment, Ms. Hunley and the others found the bodies of Sherri, Chad, and Joey Weathers. "Autopsies of the bodies of the three people disclosed that Sherri Weathers died as the result of strangulation, and that Chad and Joey Weathers died as the result of ligature strangulation.’’ Siebert v. State, 555 So.2d 772, 773-74 (Ala.Cr.App.1989). An extensive investigation was launched and physical evidence placing appellant at the murder scene was discovered. In March 1986, a 1973 Buick was found abandoned near Elizabethtown, Kentucky. Additional evidence was found at this location tieing the appellant to the murders. The appellant was finally apprehended in Hurricane Mills, Tennessee, on September 5, 1986. At the time of his arrest, appellant had in his possession evidence tying him to the murders. "After appellant was advised of his Miranda rights and waived those rights, he made a statement, the pertinent part of which follows: "He went to Sherri Weathers's apartment on the evening of February 19, 1986, and let himself in with a key which he had been given. Sherri and Linda Jarman were there. Eventually, Linda left. As he and Sherri were walking toward her bedroom, he strangled her with a piece of cloth that he had on his person. Then he woke up each of the boys individually and strangled them. He left town in a car, which he abandoned in Kentucky after it had two flat tires. After spending a couple of days at a campsite he set up near the car, he headed north and then went east, in an attempt to get as far away from Alabama as he could.” Siebert v. State, 555 So.2d 772, 775 (Ala.Cr.App.1989). The Jarman case: The appellant arrived and settled in Talladega as discussed above. "On February 19, 1986, the appellant ate lunch at the apartment of a neighbor, S.L., with L. and L.'s girl friend, Linda Odom.... Thereafter, the appellant asked L. for a ride to the apartment of his girl friend, Sherry Weathers. After L. dropped him off, the appellant spent some time at his girl friend’s apartment, where the victim, Linda Jarman, was apparently also present. Linda Jarman, who was also deaf, was a teacher at the E.H. Gentry School and knew the appellant through her work there and because she lived next door to his girl friend, Sherry Weathers. "Linda Jarman owned a yellow 1973 Buick automobile, which the appellant borrowed with her permission. He then drove back to his apartment, where S.L. observed him carry large green trash bags downstairs. The appellant told L. that he had borrowed his girl friend's automobile and was returning some of her 'stuff because they had had a fight. The appellant returned to Sherry Weathers's apartment, where he spent some time. Upon leaving that apartment, he walked next door to Linda Jarman's apartment. He spent an hour or two there, drinking wine with her. They then went into the bedroom, partially clothed, and lay down upon the bed, where he murdered her by strangling her. He then took her stereo and her car and fled Talladega. Approximately 13 days later, Linda Jarman's automobile was found with a flat tire, abandoned on the side of a highway in Kentucky. A camp site was discovered off the highway and in the vicinity of the abandoned automobile. Evidence linking the appellant to the site was also found. He was thereafter apprehended in Tennessee.” Siebert v. State, 562 So.2d 586, 588 (Ala.Cr.App.1989).
At the end of all the testimony in Jackson, the State renewed its motion to dismiss the petition because it was filed outside the time bar of Rule 32.2(c). However, there was no indication in the record that an earlier motion to dismiss on this ground had been made.
In Garrett the circuit court ordered the petitioner to amend and resubmit his petition to conform to the form prescribed by Rule 32. The amended petition related back to the date of the filing of the original petition because it was timely resubmitted, i.e., within a reasonable time. This court also stated that 28 days was a reasonable time within which to resubmit a petition.
Alabama’s Equal Justice Initiative (hereafter EJI) not only provides consultation services to attorneys representing death-row inmates, it also provides direct representation to death-row inmates and recruits volunteers to represent the inmates. Unfortunately, limited funding and "the sheer volume of death-penalty cases sometimes overwhelms” the EJI’s ability to handle its cases, and makes meeting procedural deadlines an arduous task. Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. Va. L.Rev. 863, 921 n. 261 (1996). Rule 32’s two-year deadline is sufficient to "accommodate the competing social interest of finality [and] fairness ... in capital cases.” Comment, Opting for Death: State Responses to the AEDPA’s Opt-In Provisions and the Need for a Right to Post-Conviction Counsel, 1 U. Pa. J. Const. L. 661, 663 (1999). The purpose of the deadline is to encourage capital prisoners, who have a stake in delaying subsequent procedures as long as possible, to file their petitions in a timely manner. Kara Thompson, The ABA’s Resolution Calling for a Moratorium on Executions: What Jurisdictions Can Do to Ensure that the Death Penalty is Imposed Responsibly, 40 Ariz. L.Rev. 1515, 1518 (1998). We note for instance, that the State Supreme Court of California "took over recruitment of capital defense lawyers from the state's [postconviction defense organization] because it felt the center was delaying recruitment of attorneys to delay litigation.” Howard, supra, at 919. However, the California court found it difficult to find qualified counsel to represent its death-row inmates. Howard, supra, at 919-920. A two-year limitation provides the death-row inmate ample time to obtain counsel and provides counsel ample time to become familiar with the case and to prepare the petition. This court is not inclined to excuse death-penalty inmates from the procedural rules of Rule 32. However, this court would encourage the circuit court to be prompt when appointing an indigent death-penalty inmate counsel for Rule 32 proceedings. We would also encourage the Legislature to reconsider the allocation of funding to the EJI. Providing indigent death-penalty inmates a pool of competent attorneys from which to find competent representation surely decreases the overall delays in handling the death-penalty caseload, which ultimately decreases the cost of such litigation to the taxpayers. Howard, supra, at 915.
References to the record in the trial court’s order are as follows: references to the transcript of the Talladega County trial appear as (TR. _), and references to the April 3-5, 1998, Rule 32 evidence hearing transcript will appear as (R._).
Ex parte Daniel SIEBERT. (Re Daniel Lee Siebert v. State).
1991474.
Supreme Court of Alabama.
Sept. 15, 2000.
Jeffrey E. Glen of DeForest & Duer, New York City, New York; and LaJuana Davis, Montgomery, for petitioner.
Bill Pryor, atty. gen., and James R. Houts, asst. atty. gen., for respondent.
[OPINION BY ENGLAND, Justice. type=majority]
ENGLAND, Justice.
The petition for the writ of certiorari is denied.
In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.2d 155 (1978).
WRIT DENIED.
HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and BROWN, JJ., concur.
JOHNSTONE, J., concurs specially.
[OPINION BY JOHNSTONE, Justice type=concurrence]
JOHNSTONE, Justice
(concurring specially).
I concur with the decision of the Court to deny this petition for the writ of certiorari with a “cracker.” I write specially in order to remind the bench and bar of the limitations of the effect of a denial of a petition for a writ of certiorari and in order to address some of the statements of law in the opinion of the Court of Criminal Appeals.
The denial of a petition for a writ of certiorari is not an endorsement of the decision or opinion of the lower appellate court. Ex parte Terry, 540 So.2d 785 (Ala.1989); Banks v. State, 358 So.2d 480 (Ala.1978); and Hurst v. State, 293 Ala. 548, 307 So.2d 73 (1975). Most petitions for writs of certiorari are denied because the petitions and the accompanying briefs (or such materials as are submitted seeking certiorari review) do not meet the requirements established by Rule 39 and Rule 40, Ala.R.App.P., to obtain certiorari review or otherwise do not meet the procedural or substantive requirements to demonstrate a probability of merit. Moreover, because certiorari review is discretionary, some petitions for writs of certiorari that would support certiorari review are denied in order to avoid diverting the judicial manpower of the Supreme Court from still worthier issues that must be reviewed.
Sometimes, a “cracker,” or a disclaimer, accompanies an order denying a petition for a writ of certiorari when some aspect of an opinion of the lower appellate court prompts a majority or more of the Justices to remind the bench and bar of what is true for every denial of a petition of writ of certiorari: that the denial is not an endorsement of the decision or opinion of the lower appellate court. The absence of a cracker does not imply any degree of either approval or disapproval.
On the merits, on the one hand, the result reached by the Court of Criminal Appeals in this case is entirely justifiable on the ground that the defendant’s Rule 32, Ala.R.Crim.P., petition was filed after the two-year deadline without any proof of an excuse that might warrant an extension of the deadline pursuant to Rule 1.3(b), Ala.R.Crim.P. On the other hand, some of the other aspects of the rationale of the Court of Criminal Appeals need some comment.
First, the opinion of the Court of Criminal Appeals seems to hold that Rule 1.3(b) can never authorize an extension of the two-year deadline for filing a Rule 82 petition under any circumstances. 778 So.2d at 849. This apparent holding is really just dictum because the Rule 32 petition does not establish any excusable neglect, which is the criterion for the application of Rule 1.3(b). Whether this particular rule can authorize an extension of the two-year deadline for filing a Rule 32 petition has not been previously decided by either the Court of Criminal Appeals or this Court. A question of first impression should not be contemplated in dictum as an additional rationale to buttress a primary rationale which is, in and of itself, entirely sufficient.
Second, the Court of Criminal Appeals holds that the petitioner’s claims of ineffective assistance of appellate counsel “are barred because they either were addressed at trial and on direct appeal, Rules 32.2(a)(2) and (4), or they could have been raised at trial and then challenged on direct appeal. Rules 32.2(a)(3) and (5).” 778 So.2d at 850. The particular claims of ineffective assistance of appellate counsel addressed by this rationale are quoted as paragraphs XVT.C., XVI.F., XVI.H., and XVI.L. of the Rule 32 petition. See 778 So.2d at 853. Any ground of relief, of course, must be presented, first, to the trial court and, next, to the appellate court. Ineffective assistance of appellate counsel obviously cannot be raised or addressed at trial, where no appellate representation has yet occurred, and could hardly be raised or addressed on direct appeal, where the very lawyer handling the appeal would be the one whose effectiveness would be at issue. Even if some appellate lawyer were so humble, so zealous, and so schizophrenic that he could effectively attack his own effectiveness in his own appellate brief, he would not have had an opportunity to present these attacks to the trial judge. Thus a Rule 32 petition is the only adequate remedy for ineffective assistance of appellate counsel. Brown v. State, 681 So.2d 1102 (Ala.Crim.App.1996); and Alderman v. State, 647 So.2d 28 (Ala.Crim.App.1994). The Court of Criminal Appeals erred in holding that the petitioner’s claims of ineffective assistance of appellate counsel are barred because they were or could have been raised and addressed at trial or on direct appeal.
Third, the Court of Criminal Appeals erroneously holds that the petitioner’s claims of jury misconduct are insufficient because they do not meet the criteria of Rule 32.1(e), Ala.R.Crim.P., for newly discovered evidence. 778 So.2d at 854. A claim of jury misconduct is a claim of a denial of constitutional due process. Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), and McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 549, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). Rule 32.1(a) (constitutional violations), Ala.R.Crim.P., is the authority for collateral relief for such a claim. This rule is entirely distinct from Rule 32.1(e) (newly discovered evidence), Ala. R.Crim.P ., even though a defendant must pursue a claim under either rule with timely diligence in order to succeed. The criterion of Rule 32.1(e) (newly discovered evidence) that absolutely does not apply to a claim under Rule 32.1(a) (constitutional violations) is Rule 32.1(e)(5) — that “[t]he facts establish that petitioner is innocent of the crime for which petitioner was convicted or should not have received the sentence that petitioner received.” (Emphasis added.) Ex parte Pierce, [Ms. 1981270, September 1, 2000] — So.2d - (Ala.2000). A defendant is not required to prove his innocence in order to get a constitutional trial, including a fair jury, to consider his presumption of innocence.
Daniel SIEBERT, Petitioner-Appellant, v. Donal CAMPBELL, Commissioner, Alabama Department of Corrections, Charlie E. Jones, Warden, William H. Pryor, Jr., The Attorney General of the State of Alabama, Respondents-Appellees. Daniel Siebert, Petitioner-Appellant, v. Donal Campbell, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
Nos. 02-13685, 02-15890.
United States Court of Appeals, Eleventh Circuit.
June 23, 2003.
LaJuana S. Davis, Equal Justice Initiative of Al., Montgomery, AL, for Siebert.
Ed. R. Haden, Birmingham, AL, James Roy Houts, Nathan A. Forrester, Montgomery, AL, for Respondents-Appellees.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
Daniel Siebert appeals from the dismissal of his petitions for habeas corpus under 28 U.S.C. § 2254. Although his case reaches us some eleven years after he first sought collateral review of his convictions and sentences of death, the courts have to date determined only that he is subject to procedural bars and therefore have never allowed the merits of his claims to control. The district courts dismissed Siebert’s petitions on the ground that they were untimely under the one year statute of limitations established by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), now codified at 28 U.S.C. § 2244(d)(1). Siebert had argued that the one-year deadline did not bar his petitions because a separate AEDPA provision, 28 U.S.C. § 2244(d)(2), tolled the limitations period for the time during which his “properly filed” applications for post-conviction relief were pending in the Alabama courts.
Because state courts had held in these proceedings that Siebert had missed the expiration of Alabama’s own post-conviction statute of limitations, the district courts concluded that Siebert’s state petitions were not “properly filed” and that AEDPA’s tolling provision thus did not apply. The question before us is therefore whether Siebert’s Alabama petitions, which were accepted by the courts but ultimately found to have been filed late, should be considered “properly filed” within the meaning of AEDPA’s tolling provision and the Supreme Court’s interpretation of that term in Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).
BACKGROUND
Siebert was tried in two separate prosecutions, one in Talladega County (for the murder of Linda Jarman) and one in Lee County (for the murder of Sherri Weathers and her two minor sons). He was found guilty of all charges, and at the end of each of his trials he was sentenced to death, twice. Siebert appealed his two convictions and sentences to the Alabama Court of Criminal Appeals, which issued separate decisions addressing different challenges Siebert had raised in each case. The Alabama Supreme Court subsequently denied relief, publishing its own analysis of many of Siebert’s claims in the Lee County case, Ex parte Siebert, 555 So.2d 780 (Ala.1989), as well as a summary statement in the Talladega County case announcing that it had found “no error or defect in the proceedings that adversely affected the rights of the defendant.” Ex parte Siebert, 562 So.2d 600 (Ala.1990). Siebert petitioned the United States Supreme Court for certiorari but was denied review separately in each case in 1990.
In 1992 Siebert filed the two petitions that are relevant here, challenging his Lee County and Talladega County convictions and sentences separately in each county’s circuit court under Rule 32 of the Alabama Rules of Criminal Procedure. The state responded with separate answers in the months following each of Siebert’s petitions, conceding that Siebert was entitled to an evidentiary hearing on his claim that counsel had provided ineffective assistance. The petitions were consolidated for an evidentiary hearing in the Lee County Circuit Court. After Siebert filed amendments to both petitions on March 29, 1995, the trial court commenced hearing evidence on April 3, 1995.
The next day, the state asserted for the first time that Siebert’s applications were barred because he had failed to meet the two-year statute of limitations then generally applicable to most post-conviction claims in Alabama. After continuing to take evidence on April 4 and 5, as well as on September. 26, 1996 and January 21, 1997, the circuit court adopted the state’s proposed, 87-page memorandum opinion as its final judgment, denying Siebert relief on a variety of substantive and procedural grounds. Among the many findings of the circuit court was its determination that relief was precluded by Rule 32’s statute of limitations.
The Court of Criminal Appeals affirmed, finding no merit in Siebert’s argument that the two-year statute of limitations set forth in Ala. R.Crim. P. 32.2(c) must be raised as an affirmative defense in the state’s first responsive pleading. Siebert v. State, 778 So.2d 842, 847-48 (1999). The court distinguished two earlier Alabama cases holding the state to have waived the limitations defense, reading them as addressing only the circumstance in which the state raises the defense for the first time on appeal. Id. Noting that Siebert had been allowed to amend his petitions on March 29, 1995, five days before the evidentiary hearing, the court reasoned that the state was properly allowed to do the same within a reasonable time. Id. at 848 (adopting portion of circuit court’s opinion).
On September 14, 2001, Siebert filed two different federal habeas petitions, one in the Middle and one in the Northern District of Alabama. Both district courts held his petitions untimely under AEDPA because they were not filed within a year of that statute’s effective date. The district court decisions, although accepting the premise that a state time bar must be firmly established and regularly followed to render a late petition improperly filed, nonetheless rejected Siebert’s claim that the Alabama statute of limitations failed to meet this standard. The district court decisions also declined to apply the doctrine of equitable tolling on Siebert’s behalf. Both district courts thereafter granted Siebert certificates of appealability.
DISCUSSION
Under 28 U.S.C. § 2244(d)(1), persons in custody pursuant to a judgment of a state court may file petitions for habeas corpus within one year of any of four dates specified by the statute. Because Siebert’s convictions became final prior to the effective date of AEDPA, he had until April 23, 1997 to file a federal habeas petition. Wilcox v. Florida Dept. of Corrs., 158 F.3d 1209, 1210 (11th Cir.1998). Siebert did not file until September 14, 2001. He argues, however, that the one-year statute of limitations does not bar his petitions because AEDPA also provides that:
The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period, of limitation under this subsection.
28 U.S.C. § 2244(d)(2). Siebert’s entitlement to have the limitations period tolled thus depends on whether his applications for state post-conviction review under Ala. R.Crim. P. 32 were “properly filed.” If they were, his federal habeas petitions are not untimely because the federal limitations period would have been tolled from April 24, 1996 until September 15, 2000, the date on which the Alabama Supreme Court denied review. Since Siebert filed on September 14, 2001, he will have met the one-year deadline.
I. “Properly Filed” Inquiry Under AEDPA’s Tolling Provision
The first round of jurisprudence construing the meaning of “properly filed” produced a circuit split. A majority of circuits determined that an application for post-conviction relief could be “properly filed” even if claims asserted therein were procedurally barred or otherwise meritless. Habteselassie v. Novak, 209 F.3d 1208, 1211 (10th Cir.2000) (“affirmative defenses that preclude a court from granting relief on the merits, as opposed to pure filing requirements, require analysis in some manner of the substance of the claims set forth by the petitioner and do not prevent a motion from being ‘properly filed’ for purposes of § 2244(d)(2)”); Bennett v. Artuz, 199 F.3d 116, 122 (2d Cir.1999) (declining “to engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so”) (internal quotation marks and citation omitted), aff'd, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000); Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir.1999) (criticizing authorities that “have offered little analysis to support their conclusion that the phrase ‘properly filed’ connotes some measure of merit”); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir.1998) (rejecting “the notion that a meritless PCRA petition cannot constitute ‘a properly filed application’ under § 2244(d)(2)”).
Two other circuits, however, held that applications containing claims barred under state procedural rules are not “properly filed,” regardless of whether a procedural bar constituted a filing requirement per se. Dictado v. Ducharme, 189 F.3d 889, 892 (9th Cir.1999) (defining “ ‘properly filed application’ to mean an application submitted in compliance with the procedural laws of the state in which the application was filed”); Tinker v. Hanks, 172 F.3d 990, 991 (7th Cir.1999) (holding that state “screening mechanisms ... determine when an application for postconviction relief is proper (as in ‘properly filed’)”). This circuit aligned itself with the view of the Seventh and Ninth Circuits. See Weekley v. Moore, 204 F.3d 1083, 1086 (11th Cir.2000) (holding that failure to comply with “procedural requirement forbidding successive motions” rendered petition improperly filed because “we are persuaded by the reasoning” of Dictado and Tinker); but see id. at 1086 (Barkett, J., dissenting) (criticizing majority’s interpretation as “in direct conflict with the plain meaning of the phrase ‘properly filed’ ” as used in AEDPA’s tolling provision).
In Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000), the Supreme Court unanimously rejected the broader approach followed by the Seventh and Ninth Circuits and in our own Weekley decision. Instead, the Court held that an application is properly filed “when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Id. at 8, 121 S.Ct. 361 (emphasis supplied). Contrasting a “condition to filing” with a “condition to obtaining relief,” the Court concluded that noncompliance with conditions to obtaining relief does not prevent a habeas petitioner’s state application from being “properly filed.” Id. at 11, 121 S.Ct. 361. On this ground it ruled against the state, which had argued that a post-conviction application was improperly filed because it failed to comply with two New York procedural bars, one precluding claims that were determined on the merits on appeal and the other precluding claims not raised on appeal due to “unjustifiable failure.”
The Court approvingly cited decisions from the courts of appeals distinguishing between the “properly filed” inquiry and a state court’s determination that claims were procedurally barred. Id. at 8, 121 S.Ct. 361 (citing Habteselassie, 209 F.3d at 1210-11, and Villegas, 184 F.3d at 469-70). It also independently reversed those courts, including this one, that had interpreted the “properly filed” provision to require compliance with procedural bars generally. See Weekly v. Moore, 531 U.S. 1063, 121 S.Ct. 751, 148 L.Ed.2d 654 (2001); Tinker v. Hanks, 531 U.S. 987, 121 S.Ct. 476, 148 L.Ed.2d 450 (2000). On remand of our Weekley decision, we read Artuz to dictate a result opposite the one we had previously reached. Weekley v. Moore, 244 F.3d 874 (11th Cir.2001) (“Weekley II”). Thus, we ultimately held that a Florida prisoner’s post-conviction motions were “properly filed” even though the Florida courts had dismissed them as successive. Other courts have likewise recognized Artuz to define the term “properly filed” in a manner that calls for an inquiry distinct from state courts’ own application of state rules governing post-conviction petitions. See, e.g., Pratt v. Greiner, 306 F.3d 1190, 1192, 1195 (2d Cir.2002) (holding that “even if Pratt’s state court motion relied on a forged document, it still was ‘properly filed’ under AEDPA,” since federal “courts, on habeas review, should not scrutinize the legitimacy of state court filings to determine whether they were ‘properly filed’ within the meaning of § 2244(d)(2)”).
Neither the Supreme Court’s Artuz decision nor our own Weekley decisions directly addressed noncompliance with a state post-conviction statute of limitations. Prior to Artuz, however, we had held that an application must meet state filing deadlines in order to toll the AEDPA statute of limitations. Webster v. Moore, 199 F.3d 1256, 1258 (11th Cir.), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 454 (2000). Nonetheless, we recognized out-of-circuit authority holding that the tolling provision does not require compliance with “more complex state procedural doctrines relating to timeliness or repetitiveness.” Id.
Our inquiry in Webster lacked the guidance provided by the Supreme Court’s discussion in Artuz of the meaning of “laws and rules governing filings.” The Court gave some content to this phrase by discussing several qualifying examples and then setting forth a broad distinction:
[Such rules] usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. In some jurisdictions, the filing requirements also include, for example, preconditions imposed on particular abusive filers, or on all filers generally, cf. 28 U.S.C. § 2253(c) (1994 ed., Supp. IV) (conditioning the taking of an appeal on the issuance of a “certificate of appealability”). But in common usage, the question whether an application is “properly filed” is quite separate from the question whether the claims contained, in the application are meritorious and free of procedural bar.
Id. at 8-9, 121 S.Ct. 361 (emphasis in original; additional citations omitted). See also Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2143, 153 L.Ed.2d 260 (2002) (Kennedy, J., dissenting) (explaining that “Artuz ... recognized that an ‘application’ is a ‘document’ distinct from the legal claims contained within it”).
In a footnote, the Court added that it would “express no view on the question whether the existence of certain exceptions to a timely filing requirement can prevent a late application from being considered improperly filed.” Id. at 9 n. 2, 121 S.Ct. 361 (citation omitted). It did, however, cite a Fifth Circuit case holding a Louisiana prisoner’s application for state post-conviction relief “properly filed” because two statutory exceptions to the state’s filing deadline required a limited inquiry into particular claims. See Smith v. Ward, 209 F.3d 383, 385 (5th Cir.2000), cited in Artuz, 531 U.S. at 9 n. 2, 121 S.Ct. 361. On the Fifth Circuit’s view, the inquiry required to apply the exceptions meant that timeliness was more properly regarded under the Louisiana statute as a limitation on “the state court’s ability to grant relief’ than as “an absolute bar to filing.” Id. As already noted, Artuz itself reiterated this distinction between conditions to filing and conditions to obtaining relief, though it did so in a portion of its opinion not discussing the Fifth Circuit’s Smith decision or timely filing requirements.
We note that the context in which Artuz refers to “time limits upon [a petition’s] delivery” — alongside references to the form of a document, the proper court and office for filing, and fees — addresses a narrow category of rules setting forth prerequisites to the commencement of suit. Compliance with a statute of limitations is not generally treated as a precondition to a suit’s commencement, but rather as a condition that must be satisfied to win relief on a particular claim (or all claims). By tying the term “time limits” to “delivery,” Artuz might be read to refer to deadlines governing service upon an opposing party, which, unlike timeliness, is ordinarily a prerequisite to the formal commencement of suit. The Court’s discussion of time limits on “delivery” might also suggest a concern with requirements that papers be submitted within the hours of business maintained by a clerk’s office.
The Artuz Court did not further amplify the meaning of its references to “time limits upon ... delivery” and “timely filing requirement^].” Nor need we presently decide whether the Supreme Court’s language refers only to rules addressing the mechanics of delivery, such as deadlines for service or hours for lodging papers. Because issues “pertaining to the timeliness of a prisoner’s application for state post-conviction relief are not homogenous,” Habteselassie, 209 F.3d at 1211 n. 3 (citations omitted), we believe this case is best resolved narrowly, by attending to the precise nature of the Alabama time bar applied in Siebert’s post-conviction proceedings. Under Ala. R.Crim. P. 32.2(c), state courts retained discretion to address claims raised in late petitions. In the sections that follow, we first discuss the Alabama authorities that lead us to characterize the time bar, as applied in Siebert’s case, in this manner. We then proceed to consider whether a discretionary statute of limitations is a “timely filing requirement” such that noncompliance prevents a state post-conviction application from being “properly filed” within the meaning of § 2244(d)(2).
II. Discretionary Application of Alabama’s Post-Conviction Time Bar
The state argues that the Rule 32 statute of limitations is a jurisdictional bar that may be noticed at any stage of proceedings and always requires dismissal. This contention appears to be an accurate statement of Alabama law as it now stands. Under Williams v. State, 783 So.2d 135, 137 (Ala.Crim.App.2000), “the failure to file a Rule 32 petition within the two-year limitations period is a jurisdictional defect that can be noticed at any time and is not waived by the failure of the state to assert it.”
For the purpose of applying AEDPA’s tolling provision, however, our point of reference is not Alabama law as it now exists. Under the judicially developed doctrine of procedural default, see Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), only rules that are “firmly established and regularly followed” qualify as adequate state grounds for precluding substantive review of federal claims. Edwards v. Carpenter 529 U.S. 446, 450, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). We have not previously stated that this standard likewise applies to state procedural rules in the “properly filed” inquiry under § 2244(d)(2), but we have implied that it does. See Webster, 199 F.3d at 1259 & n. 4 (pausing to note, in concluding that state court ruling warranted deference in “properly filed” inquiry, that “[t]here is no contention in this case that the state court’s rule is not ‘firmly established and regularly followed’ ”) (citation omitted). The aims of comity and federalism that animate both AEDPA and the doctrine of procedural default favor deference toward state procedural rules only when their consistent application demonstrates the state’s real reliance on them as a means to the orderly administration of justice. Accordingly, we conclude that a rule governing filings must be “firmly established and regularly followed” before noncompliance will render a petition improperly filed for the purpose of AEDPA’s tolling provision. For several reasons, we believe the jurisdictional character of Rule 32’s time bar did not meet this standard at the time of Siebert’s post-conviction proceedings.
We first note that the only case cited by the state in arguing that the Alabama statute of limitations is jurisdictional is Williams, which itself cited as positive authority only one decision construing the Rule 32 time bar: Siebert’s own case. The other precedents cited by Williams were four cases discussing statutes of limitation in the context of the state’s prosecution of an accused. Williams, 783 So.2d at 137. In our view there exists rather little analogy between statutes of limitation restricting the state’s authority to initiate prosecutions and a statute of limitations restricting convicted defendants’ opportunity to bring post-conviction challenges. Hence we believe that apart from Siebert’s own case, the precedents cited in Williams were largely inapposite to its conclusion that the Rule 32 statute of limitations imposes a jurisdictional bar. The very necessity of relying on Siebert’s case suggests that the jurisdictional character of the post-conviction limitations period was not “firmly established” when Siebert itself was decided.
Second, we note that Williams expressly manifests the appeals court’s awareness that it was announcing a new rule. In characterizing a failure to file within the two-year limitations period as a jurisdictional defect, the court stated that “[a]ny previous holdings to the contrary are hereby expressly overruled,” Williams, 783 So.2d at 137. It then cited Howard v. State, 616 So.2d 398 (Ala.Crim.App.1993), as an example. In Howard, the court had declined to apply the statute of limitations because it found the state had not met its burden of pleading the time bar. Id. at 399. As Williams' itself recognized, this treatment of the statute of limitations is in conflict with the rule that Alabama courts lack jurisdiction to entertain untimely Rule 32 petitions.
Finally, our conclusion that the jurisdictional character of the time bar was not firmly established at the time of Siebert’s Rule 32 proceedings draws support from the opinions denying relief on his petitions. First, neither the circuit nor the appeals court “dismissed” the’petitions, as would be the proper disposition upon a determination that no jurisdiction exists, see, e.g., Williams, 783 So.2d at 137; rather, both courts considered the case and ultimately denied relief. See Siebert, 778 So.2d at 846 (discussing Lee County Circuit Court ruling, which “adopted the State’s proposed memorandum opinion as its final judgment, denying Siebert the relief requested in his petitions”); id. at 856 (“affirm[ing]” denial of relief). Second, the circuit court not only held Siebert’s applications untimely, but also held his claims to lack merit and to be barred under several different procedural rules. Id. at 846 (discussing 87-page circuit court ruling). The court of criminal appeals, although faulting the circuit court for disposing of the merits, itself pronounced that “we have evaluated the evidence presented at the evidentiary hearing on Siebert’s Rule 32 petitions, and we conclude that Siebert received a fair trial and that the trial court correctly denied the petition.” Id. Neither the circuit court’s explicit merits determinations nor the court of criminal appeals’ own evidence-related aside are consistent with a determination that jurisdiction was lacking. Third, both the circuit court and the court of appeals discussed a number of non-jurisdictional bases for allowing the state to raise the time bar despite not having pled this defense in its original response to Siebert’s petitions. Id. at 848 (discussing Rule 32 statute of limitations and quoting circuit court’s opinion allowing state to raise defense in amended answer). All of this discussion would be superfluous if the courts might as easily have relied on the rule’s supposedly jurisdictional character.
For these reasons, we believe that although the time bar may now be of jurisdictional import under Williams, this was not the case at the time of Siebert’s Rule 32 proceedings.
Alabama law made clear instead that noncompliance with the Rule 32 time bar did not divest courts of discretion to entertain late petitions should they choose to do so, at least in the absence of an appropriate pleading by the state of a limitations defense. This was particularly clear with respect to courts’ power to rule on the merits of a late-filing petitioner’s claims as an alternative ground for denying relief. In Jackson v. State, 612 So.2d 1356, 1357 (Ala.Crim.App.1992), the court found that a Rule 32 petitioner had filed “over four months beyond the two-year statute of limitations set out in Rule 32.2(c).” The court also noted, however, that “[generally the statute of limitations is an affirmative defense that must be affirmatively pleaded or it is waived,” and that the state had not raised the time bar until the conclusion of testimony at an evidentiary hearing. Id. Rather than decide whether this constituted a waiver, the court upheld the circuit court’s denials of relief on the merits, attached the circuit court’s opinion as an appendix, and itself addressed the one claim neglected by the circuit court, finding it also to be “non-meritorious as a matter of law” and “due to be denied, irrespective of any procedural bar.” Id.
The Alabama courts’ former discretion to entertain late petitions also encompassed the power to grant relief. In Howard v. State, 616 So.2d 398 (Ala.Crim.App.1993), the Court of Criminal Appeals held that the state, which “merely denied the allegations of the petition” in its “Answer and Motion to Dismiss,” had not satisfied its “burden of pleading any ground of preclusion.” Howard, 616 So.2d at 399 & n. 1 (quoting Ala. R.Crim. P. 32.3). The appeals court therefore remanded the case for further consideration of the petitioner’s claims that he had not been informed of his right to appeal and that his prosecution subjected him to double jeopardy. By reversing the lower court and remanding, the court demonstrated its power to grant typical appellate remedies even when proceedings were originally commenced via an untimely petition.
In decisions prior to and contemporaneous with Siebert’s proceedings, the legal analyses set forth by the Court of Criminal Appeals likewise implied the courts’ power to vacate convictions or reduce sentences on the basis of claims raised in untimely petitions. In Howard, by remanding for further proceedings, the appeals court contemplated the possibility that the circuit court would vacate the petitioner’s conviction or permit him to take an out-of-time appeal. In Callahan v. State, 767 So.2d 380 (Ala.Crim.App.1999), the court recounted a procedural history in which a death-sentenced prisoner filed a Rule 32 petition some ten and a half months after the expiration of the normal two-year limitations period. Id. at 383. Nonetheless, the court addressed the substance of each of the petitioner’s dozens of claims as to how certain asserted failures of his trial and appellate counsel constituted constitutionally ineffective assistance. Rather than hold these claims subject to Rule 32’s time bar, the court held repeatedly that the petitioner had failed to carry “his burden of proving by a preponderance of the evidence the facts necessary to show that he is entitled to relief.” E.g., id. at 394, 395, 396, 397, 401. The court used the same language in rejecting the petitioner’s claim that the prosecution had failed to disclose exculpatory evidence. Id. at 402. With respect to a range of additional substantive claims, the court applied procedural bars unrelated to the statute of limitations. Id. at 404. Similarly, in Jones v. State, 753 So.2d 1174 (Ala.Crim.App.1999), the petitioner filed a Rule 32 petition roughly two months after the end of the. normal two-year limitations period. Nonetheless, as in Callahan, the court treated the merits of a range of claims concerning ineffective assistance of counsel. As it summarized the endeavor, “we have reviewed each and every allegation of ineffective assistance of counsel and have found either that the allegation is without merit or that Jones failed to prove it.” Id. at 1199. On other claims, the Jones court applied procedural bars other than the statute of limitations. Id. at 1205-1206.
Although the court granted relief in neither Callahan nor Jones, its extensive and manifold analysis of the petitioners’ ineffective assistance claims makes clear that relief would have been proper if compelled by the substantive law addressing the Sixth Amendment right to counsel. The state contends that Jones and Callahan do not show that Alabama courts were authorized to dispense with the statute of limitations, but merely demonstrate that the court failed to notice the limitations period’s expiration in these particular cases. The possibility that the court neglected in these cases to confirm the petitions’ timeliness, however, actually demonstrates the very point we find most relevant in our “properly filed” inquiry: untimeliness did not mandate a petition’s dismissal, but rather was a matter within the court’s discretion to ignore. We note that the lengthy opinions published by the Court of Criminal Appeals in Jones and Callahan set forth comprehensive legal analyses. This approach does not suggest a decisional process in which the court simply seized upon a ground other than the statute of limitations as the most efficient means to dispose of the claims before it. We instead discern in these cases a resolve on the appeals court’s part to address the procedural and substantive aspects of the petitioners’ cases in full. The comprehensive analyses set forth reflect, if not necessarily a deliberate decision to permit untimely filing, at least an awareness that untimeliness, were it shown, would not compel the court to refrain from a sustained treatment of the merits. It thus can no more be said that the court failed to notice the running of the statute than that it chose to disregard it.
In this case, the issue of timeliness first arose some three years after Siebert filed his petitions. The circuit court rejected Siebert’s argument that the state had waived the statute of limitations defense by failing to plead it sooner. Under the “relation back” doctrine, it held, the state should be allowed to raise the time bar since Siebert had been allowed to amend his own petitions. The Alabama Court of Criminal Appeals upheld this ruling, but it did so on the basis of the circuit court’s discretionary authority to allow amendments to pleadings, without determining whether the state was entitled as a matter of law to the benefit of a statute-of-limitations defense. Although the court rejected Siebert’s argument that the state waived the defense by not raising it in its “first responsive pleading,” the court treated waiver as a question of Siebert’s right to timely notice rather than of any state entitlement. Siebert, 778 So.2d at 847-48 (concluding that “Siebert had timely notice of the State’s intention to rely on the statute of limitations defense” in addressing waiver issue) (quoting circuit court opinion). While Siebert thus could not demand that he be exempted from the time bar’s application, the appeals court’s analysis makes clear that enforcement of the limitations period was committed to the circuit court’s discretion. This is apparent from its citation of rules providing that “[ajmendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment,” and that a court “may summarily dismiss” a petition when, “assuming the allegations of the petition to be true, it is obviously without merit or is precluded.” Id. at 848 (citing Ala. R.Crim. P. 32.7(d) and quoting Burton v. State, 728 So.2d 1142, 1147-48 (Ala.Crim.App.1997)) (additional citations omitted) (emphasis added). The court concluded .this portion of its discussion by explaining that “the trial court could have dismissed the petition on procedural grounds even without any response from the State.” Id.
Because of the role of judicial discretion in the limitations period’s application in this case, we need not presently decide what effect untimeliness would have on the “properly filed” inquiry were the state to have pled the limitations period in a manner clearly recognized by Alabama’s courts to secure its entitlement to rely on this defense. Here, the time bar’s application was not a matter of state entitlement but of court discretion, and the same discretion relied upon to impose the time bar could also have afforded a basis to reach the merits of Siebert’s claims, as Howard, Jackson, Callahan, and Jones make clear. It cannot be said that Alabama law required the courts to refrain from adjudicating the merits of the claims raised in Siebert’s untimely petitions. We turn then to the question of what bearing a time bar within a court’s discretion to impose has on the question of proper filing under Artuz.
III. Discretionary Time Bars as “Conditions to Obtaining Relief’
We are unable to locate any authority addressing the intersection between AED-PA’s tolling provision and statutes of limitation permitting courts, in their discretion, to examine the merits of claims raised in late petitions. Cases applying the tolling provision in other circuits have predominantly addressed state rules requiring courts to determine whether an exception to a limitations period applies. Two of three circuits to have addressed this issue have held that failure to meet a filing deadline will not prevent a petition from tolling AEDPA’s limitations period if the state time bar provides exceptions that cannot be applied without at least a limited merits assessment. Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.2001) (reversing earlier decision, after stay of mandate, in light of Supreme Court’s intervening Artuz decision); Smith, 209 F.3d at 385; see also Habtesalassie, 209 F.3d at 1211 n. 3 (reserving similar question). These courts have reasoned that since the existence of such exceptions assures at least some level of judicial review of claims raised in late petitions, timeliness is better regarded as a condition to obtaining relief than a condition to filing. See Dictado, 244 F.3d at 727-28; Smith, 209 F.3d at 385.
The Seventh Circuit has criticized this approach in holding that Illinois’ statute of limitations, by permitting late filings on the part of petitioners able to satisfy what the Seventh Circuit characterized as a “miscarriage of justice” standard, does not render all untimely petitions “properly filed.” Brooks v. Walls, 279 F.3d 518, 521 (7th Cir.2002), aff'd on reh’g, 301 F.8d 839, cert. denied, — U.S. —, 123 S.Ct. 1899, 155 L.Ed.2d 829 (2003). Although the court acknowledged that such a rule requires “at least a sidelong glance at the merits,” it characterized the exception as an escape valve for “plain error.” Id. at 521, 523. The court then reasoned that a state court decision finding (1) that a petition is untimely, and (2) that no miscarriage of justice requires its entertainment, is of a form traditionally recognized to rest on “adequate and independent state grounds” sufficient to preclude collateral federal review. Id. at 523-24. The Seventh Circuit accordingly held that a petition dismissed as untimely by the Illinois courts had not tolled AEDPA’s one-year limitations period.
In this case, we believe the discretion left to Aabama courts to enforce the time bar compels the conclusion that timeliness was not a prerequisite to filing per se. Since the courts’ discretion meant a petition might be entertained even when filed late, the two-year deadline did not create a “timely filing requirement.” Artuz, 531 U.S. at 9 n. 2, 121 S.Ct. 361 (emphasis added). Rather, the very exercise of discretionary authority, regardless of whether or not to excuse lateness, is itself a sufficient quantum of judicial review to show that Aabama courts deemed the form and manner of a petition’s filing sufficient to trigger their own authority to act upon claims raised therein. At least in those instances where the courts treated the state as having failed to secure any entitlement to rely on the statute of limitations as a defense, timeliness was not among the conditions required for such discretion. Accordingly, compliance with Rule 32.2(c)’s two-year deadline should be regarded as a condition to obtaining relief rather than a condition to filing, and we cannot say that the deadline was among the “laws and rules governing filings” of Rule 32 petitions. Id. at 8, 121 S.Ct. 361.
Our approach is consistent with the Fifth Circuit’s in Smith. As with the Louisiana law considered in that case, timeliness under Ala. R.Crim. P. 32.2(c) was not a “prerequisite[ ]” that had to be satisfied before Aabama courts would “allow a petition to be filed and accorded some level of judicial review.” Smith, 209 F.3d at 384 (quoting Villegas v. Johnson, 184 F.3d 467, 470 n. 2 (5th Cir.1999) (emphasis supplied in Smith)). The Fifth Circuit’s refinement of its approach comes nearest to our present task in Emerson v. Johnson, 243 F.3d 931 (5th Cir.2001), a case decided after Artuz and Smith. There, the court considered a Texas statute that forbade state habeas petitioners from filing motions for reconsideration, but which Texas courts, by entertaining such motions, had ignored on several occasions. Id. at 934-35. Citing “the Artuz Court’s broad reading of the phrase ‘properly filed,’ ” the Fifth Circuit held that a petitioner’s motion for reconsideration, although forbidden by statute, was nonetheless properly filed. Id. at 935. The Texas law considered in Emerson bore two important resemblances to Alabama’s formerly discretionary time bar. First, the courts’ occasional neglect of the statute was not pursuant to any equitable exception they might have created to mitigate a rule of doubtlessly harsh consequence. Rather, the rule’s non-application was simply an unexplained practice evidenced by three cases in which the Texas courts had entertained motions for reconsideration. As read by the Fifth Circuit, the opinions published in these cases offered no reason for disregarding the statutory bar. Second, the procedural histories of these Texas cases, as recounted by the Fifth Circuit, did not end in vacations of conviction or dismissals of sentences. For the purpose of the “properly filed” inquiry with which the Fifth Circuit was concerned, it was sufficient that the Texas courts, by entertaining motions for reconsideration, had “provided state habeas petitioners with the hope that a motion or suggestion for reconsideration may be successful.” Id. at 935.
The same must be said of Alabama courts’ one-time discretion to entertain untimely petitions. The entertainment of late petitions in Howard, Jackson, Jones, and Callahan provided prisoners with “some level of judicial review.” Smith, 209 F.3d at 384. Although the practice reflected in these cases was hardly a guarantee, it did provide Alabama prisoners with the hope that a petition, even if filed late, could be successful. Such petitions must in our view be regarded as “properly filed.”
Our treatment of Alabama’s formerly discretionary time bar is also consistent with the Seventh Circuit’s application of AEDPA’s tolling provision in Brooks. In an opinion affirming the Brooks decision on rehearing, the Seventh Circuit panel revisited a hypothetical set forth in its first decision, whereby state law might provide that “any meritorious filing” would be deemed timely. Brooks v. Walls, 301 F.3d 839, 841 (7th Cir.2002). The court explained that “the only sensible understanding” of such a rule “would be that every collateral attack was timely for purposes of state law, because every one was enough to precipitate a decision on the merits.” Id. (emphasis added). In Alabama at the time of Siebert’s Rule 32 proceedings, an untimely petition was “enough to precipitate a decision on the merits,” at least in the category of cases, like this one, in which the courts treated the two-year time bar as a condition within their own discretion to apply. Howard, Jackson, Jones, and Callahan provide examples of merits determinations precipitated by untimely petitions.
We need go no further in addressing the doctrine of adequate and independent state grounds discussed in Brooks. As the Seventh Circuit explained, this doctrine has been applied in eases assessing whether a federal habeas petitioner’s procedural default of state remedies precludes collateral federal review absent a showing of “cause” and “prejudice.” Brooks, 279 F.3d at 523 (citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Unlike the highly intricate rules governing procedural default, which articulate a judicially crafted doctrine aiming broadly to reconcile the rights of criminal defendants and the role of federal courts with the authority of states and state courts, the application of AEDPA’s tolling provision is a comparatively straightforward enterprise predicated on the plain meaning of the phrase “properly filed.” In Artuz, the Court rejected arguments pertaining to the federalism-related “object of § 2244(d)(2)” in favor of resolving the case on the basis of “the only permissible interpretation of the text-which may, for all we know, have slighted policy concerns on one or the other side of the issue as part of the legislative compromise that enabled the law to be enacted.” Artuz, 531 U.S. at 10, 121 S.Ct. 361.
In light of this instruction that controlling force be given to the literal meaning of the phrase “properly filed,” we find it dispositive that the exercise of discretion to enforce or not enforce a post-conviction time bar itself constitutes a sufficient quantum of judicial review to effectively ratify the form and manner of a petition’s filing. When a petition has thus empowered a court to act directly upon the claims it raises, we believe it must be regarded as “properly filed.” Accordingly, we hold that Siebert’s noncompliance with Rule 32’s time bar, since it was treated by the Alabama courts as immaterial to their own authority to act upon his claims, did not render his post-conviction applications “[imjproperly filed.”
Since timeliness is the only issue raised by the state in arguing that Siebert failed to comply with the laws and rules governing filings under Rule 32, we conclude that his petitions were “properly filed” within the meaning of § 2244(d)(2). An application for post-conviction relief, once properly filed, remains “pending” for the purpose of tolling the one-year federal limitations period until the final disposition of any appeals to higher state courts. Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 2138, 153 L.Ed.2d 260 (2002); Moore v. Crosby, 321 F.3d 1377, 1380 (11th Cir.2003) (“It is clear that tolling continues under section 2244(d)(2) while the petitioner appeals the denial of a state application in state court.”). AEDPA’s limitations period was therefore tolled in Siebert’s case from the date of the statute’s enactment, at which time his Rule 32 petitions were already pending, until September 15, 2000, when the Alabama Supreme Court denied discretionary review of the Alabama Court of Criminal Appeals’ decision upholding the denial of relief. Because Siebert filed his federal habeas petitions on September 14, 2001, his petitions were filed within one year of the limitations period’s commencement. They were thus timely under § 2244(d)(1), and the district courts are due to be reversed.
CONCLUSION
For the foregoing reasons, we VACATE the district court orders dismissing Siebert’s petitions and REMAND for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Alabama’s courts commented on the merits of Siebert's claims, but only as an alternative ground of decisions that also held his petitions untimely. See Siebert v. State, 778 So.2d 842, 846 (Ala.Crim.App.1999) (describing ruling of Lee County Circuit Court as "disposing of the claims in the petitions as procedurally barred, but nonetheless also disposing of these claims on their merits”); id. (commenting that "Siebert received a fair trial”). It cannot be said that the courts allowed the merits to control in taking this approach.
The statute of limitations — -which is actually codified not by statute but by an Alabama Supreme Court rule — was later shortened to one year by an order effective August 1, 2002.
The certificate of appealability granted by the Middle District of Alabama followed its denial of Siebert's motion under Fed.R.Civ.P. 59(e) to alter or amend the judgment denying habeas relief, as well as a subsequent grant of Siebert's motion to reopen the time for taking an appeal. The state argues on appeal that only the denial of Siebert’s Rule 59 motion, not the underlying dismissal of his habeas petition, is before this Court. We reject this argument in light of the procedural history recounted by the district court in its order reopening the time for taking an appeal, as well as its grant of a certificate of appealability as to both its Rule 59 order and the underlying habeas dismissal. .In addition, equitable tolling of the limitations period is in some instances appropriate under circumstances not encompassed by the statutory exceptions to the time bar. See Drew v. Department of Corrs., 297 F.3d 1278, 1286 (11th Cir.2002), cert. denied, — U.S. —, 123 S.Ct. 1364, 155 L.Ed.2d 205 (2003).
The United States Reports misspell petitioner Jeffrey Weekley’s name in captioning the Supreme Court order vacating our opinion.
In the third court of appeals case requiring petitioners’ applications to be free of procedural bar, the Ninth Circuit had held its mandate pending the Supreme Court’s decision in Artuz. See Dictado v. Ducharme, 244 F.3d 724, 725 (9th Cir.2001). After the Supreme Court handed down its decision, the Ninth Circuit withdrew its earlier opinion and published a new opinion finding the petitioner’s state application properly filed. Id. at 725, 728. .In Webster, we presumed the limitations period established by Fla. R.Crim. P. 3.850 to be mandatory unless a prisoner met one of several narrow and specifically described exceptions enumerated by the rule. For reasons discussed infra, we believe the limitations period established by Ala. R.Crim. P. 32.2 was not mandatory in this sense when it was applied in Siebert's case.
Despite the reliance placed on it by Williams, the decision denying Siebert relief did not discuss whether the Rule 32 statute of limitations was a jurisdictional bar. Rather, Siebert himself argued that Rule 32.2(c) was not jurisdictional, but the appeals court refused to address this contention because he had not addressed it to the trial court. Siebert v. State, 778 So.2d 842, 847 (Ala.Crim.App.1999). The portion of Siebert subsequently quoted in Williams concerned only the conceded authority of Alabama circuit courts to decide sua sponte to dismiss when "a simple reading” of the petition shows that it "is obviously without merit or is precluded.” Williams, 783 So. at 136-37 (Ala.Crim.App.2000) (quoting Siebert, 778 So.2d at 847 (internal citation omitted)). A court's discretionary authority to dismiss an untimely petition on its own initiative is distinct from a party's authority to enforce a time bar, and it is most certainly distinct from a jurisdictional rule requiring a court to dismiss untimely petitions whenever their untimeliness may be noticed.
The Court of Criminal Appeals noted that the record showed the district attorney requesting at the conclusion of the evidentiary hearing to "renew” the state’s motion to dismiss the petition as time-barred. Jackson, 612 So.2d at 1357. The court added, however, that it found "no indication in the record” that "the district attorney ever made an earlier motion on this basis.” Id.
In Siebert, the court also cited a rule providing that "[l]eave to amend shall be freely granted." Ala. R.Crim. P. 32.7(d). The appeals court appears to have been referring, however, to the leave granted Siebert to amend his own petitions shortly before the evidentiary hearing convened some three years after his original filing. The next sentence of its decision reads: "The granting or denial of a motion to amend a Rule 32 petition is within the sound discretion of the trial court, whose ruling on such a motion will be reversed only for an abuse of discretion.” Siebert, 778 So.2d at 848 (emphasis added) (citation omitted). We thus cannot read the appeals court’s enunciation of a "freely granted” standard to suggest any qualification of the main thrust of its reasoning, which, as described in the text, recognized the circuit court's discretion to allow the state to raise the time bar.
The Fifth Circuit also noted that it could find no case in which the Texas courts had held the statutory bar to prohibit the filing of a motion for reconsideration. Emerson, 243 F.3d at 935.
Daniel SIEBERT, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Charlie E. Jones, Warden, Troy King, The Attorney General of the State of Alabama, Respondents-Appellees.
No. 05-16646.
United States Court of Appeals, Eleventh Circuit.
July 13, 2006.
Leslie S. Smith, Fed. Defender’s Office, LaJuana S. Davis (Court-Appointed), Equal Justice Initiative of AL, Montgomery, AL, for Siebert.
Kevin Christopher Newsome, J. Clayton Crenshaw, Montgomery, AL, for Respondents-Appellees.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
[OPINION BY BARKETT, Circuit Judge: type=majority]
BARKETT, Circuit Judge:
Daniel Siebert appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. On appeal, Siebert argues that the district court erred by dismissing his petition on the ground that his claims were procedurally defaulted. He further argues that even if his claims were procedurally defaulted, he demonstrated cause and prejudice sufficient to overcome the default.
In 1987, Siebert was convicted of killing Sherri, Joseph, and Chad Weathers and sentenced to death by electrocution. His conviction and sentence were upheld on direct appeal. See Siebert v. State, 555 So.2d 772 (Ala.Crim.App.1989), aff'd, Ex parte Siebert, 555 So.2d 780 (Ala.1989). Siebert filed a petition for relief from his conviction and death sentence under Ala. R.Crim. P. 32 in 1992. A two year statute of limitations governed the filing of Rule 32 petitions from the time the Alabama Court of Criminal Appeal issued a certificate of final judgment. Siebert’s petition was filed more than two years after the Alabama Court of Criminal Appeals issued a certificate of final judgment, and it was ultimately denied on the grounds that it was barred by Alabama’s statute of limitations. Siebert v. State, 778 So.2d 842 (Ala. Crim.App.1999), cert. denied, 778 So.2d 857 (Ala.2000).
Siebert then filed a federal habeas corpus petition under 28 U.S.C. § 2254 in September 2001 claiming that his federal constitutional rights were violated by, among other things, his counsel’s failure to investigate and present mitigating evidence. The State of Alabama moved to dismiss, arguing that consideration of the petition was barred by the one year statute of limitations in 28 U.S.C. § 2244(d). Siebert responded that the statute of limitations had been tolled pursuant to § 2244(d)(2) until the Alabama courts disposed of his Alabama Rule 32 petition and, thus, his federal habeas corpus petition was timely. The district court agreed with Alabama and summarily dismissed Siebert’s habeas petition, finding that his Rule 32 petition, which had been filed outside of Alabama’s two year statute of limitation, had accordingly not been “properly filed,” and therefore did not toll the federal statute of limitations for § 2254 purposes. Siebert v. Haley, 193 F.Supp.2d 1260, 1272 (M.D.Ala.2002).
This Court, however, reversed, holding that in the context of § 2244(d)(2)’s tolling provision, “a rule governing filings must be ‘firmly established and regularly followed’ before noncompliance will render a petition improperly filed for the purposes of AEDPA’s tolling provision,” and that Alabama’s Rule 32.2(c) did not meet that requirement. Siebert v. Campbell, 334 F.3d 1018, 1025 (11th Cir.2003) (“Siebert 7”). Thus, because the time had been tolled until the Alabama Courts ruled on his Rule 32 petition, the federal petition was not barred from consideration by AED-PA’s statute of limitations, and the matter was remanded to the district court.
On remand, the district court, after considering the petition, ruled that all of Siebert’s claims were procedurally defaulted under the authority of Hurth v. Mitchem, 400 F.3d 857 (11th Cir.2005), because the state post-conviction petition had not been timely filed. The district court also held that Siebert was unable to demonstrate “cause” to excuse his procedural default. Accordingly, the court denied the petition. Siebert now appeals. We affirm because the district court correctly determined that relief is barred by Hurth.
Federal courts are barred from reaching the merits of a state prisoner’s federal habeas claim where the petitioner has failed to comply with an independent and adequate state procedural rule. Wainwright v. Sykes, 433 U.S. 72, 85-86, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a state court correctly applies a procedural default principle of state law, federal courts must abide by the state court decision, Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.1990), but only if the state procedural rule is regularly followed, Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). In Hurth, this Court specifically held that the Alabama statute of limitation in Rule 32 is firmly established and regularly followed for purposes of applying the doctrine of procedural default. 400 F.3d at 863. Thus, while Siebert I held that Alabama’s Rule 32 tolled the time for the filing of Siebert’s federal habeas petition under the tolling provision of § 2244(d), Hurth explicitly held that Alabama’s Rule 32 was sufficiently firmly established and regularly followed to warrant a procedural default. Id. Siebert here argues that we are not bound by Hurth’s holding because the issue in that case was not whether Rule 32 was consistently applied in the Alabama state courts to the extent necessary to constitute a procedural bar, but only whether the fact that Rule 32 was not jurisdictional in nature meant that it was not firmly established and regularly followed. We cannot agree.
The certificate of appealability granted in Hurth was explicitly granted to decide the issue of whether Rule 32 was consistently applied in the Alabama state courts to the extent necessary to constitute a procedural bar. Id. at 860 (“Whether the district court erred in dismissing the claims in appellant’s federal habeas corpus petition ... as procedurally defaulted when it is arguable among jurists of reason that the state’s rationale for failing to reach the merits of appellant’s claims was not consistently applied.”). Hurth answered this question affirmatively. Id. at 862-63.
Furthermore, Hurth rejected as “error” the precedent of Moore v. Campbell, 344 F.3d 1313 (11th Cir.2003), relied on by the petitioner there for the proposition that Alabama’s time bar rule was inconsistently applied because it had not been jurisdictional in nature prior to Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000). See Hurth, 400 F.3d at 861 (noting that Moore had incorrectly taken the “jurisdictional criterion from [Siebert /]’s holding” and applied it “into the different context” of deciding whether a state procedural rule was independent and adequate). In fact, Hurth concluded—after reviewing the relevant Alabama case law—that Rule 32 was firmly established and regularly followed even before Alabama courts had considered the time bar to be jurisdictional Id. at 862-64. The district court correctly determined that Hurth is binding precedent, and that Siebert’s claims are procedurally defaulted.
Siebert also argues that, even if his claims are procedurally defaulted, he satisfied an equitable exception to the procedural bar doctrine by showing cause and prejudice for the default. Specifically, Siebert argues that he did not personally receive notice of the time that his state postconviction limitations period began to run, and therefore could not comply with Alabama’s procedural requirements. His argument lacks merit.
The existence of sufficient “cause” to justify a procedural default ordinarily turns on whether the prisoner can show that some “objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Here, Siebert’s argument is that the certificate of judgment issued by the Court of Criminal Appeals “was sent to the Lee County Circuit Court clerk” but not to him personally. Alabama Rule of Appellate Procedure 17 obligates the clerk of the Court of Criminal Appeals to send notice of any order entered in a case to the party’s counsel if the party is represented by counsel. Nothing in this case indicates that state procedural rules, or any external objective factor, impeded Siebert’s lawyer from complying with the State procedural rule.
The evidence in the record reflects that the certificate of judgment was timely issued. Siebert, who was represented by counsel, does not present any evidence that his counsel did not receive the certificate of judgment or that the clerk of court failed to comply with the Alabama Rules of Appellate Procedure. Accordingly, he has not made the requisite showing to prove “cause” sufficient to justify a procedural default.
AFFIRMED.
28 U.S.C. § 2244(d)(2) states that ''[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."
We review the district court's dismissal of a petition for writ of habeas corpus de novo. Drew v. Dep't of Corrs., 297 F.3d 1278, 1283 (11th Cir.2002). The district court's factual determinations will be reversed only if they are clearly erroneous. Dorsey v. Chapman, 262 F.3d 1181, 1185 (11th Cir.2001).
Additionally, one of Siebert’s claims, relating to the failure of his counsel to present facts that were "critical to a reasoned understanding” of Siebert's background, was not raised in Siebert's Rule 32 petition and is therefore procedurally defaulted for that reason. See Harmon v. Barton, 894 F.2d 1268, 1270 (11th Cir.1990) ("[A] state habeas corpus petitioner who fails to raise his federal constitutional claim in state court is procedurally barred from pursuing the same claim in federal court absent a showing of cause for and actual prejudice from the default.”).
Ala. R.App. P. 17 provides, in pertinent part, as follows: (a) Notice of Orders. Immediately upon the entry of an order the clerk shall serve a notice of its entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel.
Daniel SIEBERT, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
No. 06-11841.
United States Court of Appeals, Eleventh Circuit.
March 7, 2007.
Anne Borelli (Court-Appointed), Leslie S. Smith (Courh-Appointed), Montgomery, AL, LaJuana S. Davis (Court-Appointed), Equal Justice Initiative of Alabama, Montgomery, AL, for Petitioner-Appellant.
J. Clayton Crenshaw, Kevin Christopher Newsom, Montgomery, AL, for Respondent-Appellee.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
[OPINION BY BARKETT, Circuit Judge: type=majority]
BARKETT, Circuit Judge:
Daniel Siebert filed a federal habeas petition pursuant to 28 U.S.C. § 2254 on September 14, 2001 challenging the validity of his conviction and sentence for the murder of Linda Jarman. The district court dismissed it as being untimely filed pursuant to 28 U.S.C. § 2244(d). This court reversed and remanded, finding that his state petition had been properly filed so that his one year federal statute of limitations was tolled, making his federal petition timely. We thus remanded for further proceedings. Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003) (“Siebert I”). However, instead of further proceedings, the district court revisited the timeliness issue and again dismissed the petition as untimely, finding that Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), superseded our decision in Siebert I. We find that the law of the case applies, noting that Pace did not address the question presented in Siebert I, to wit: a statute of limitations that operated as an affirmative defense. However, rather than continuing piecemeal litigation and revisiting our opinion in Siebert I in light of Pace, we again reverse and remand for further proceedings, including questions of procedural bar and the resolution of claims which were exhausted on direct appeal.
REVERSED AND REMANDED.
Daniel Lee SIEBERT, Plaintiff-Appellant, v. Richard ALLEN, Commissioner, Alabama Department of Corrections, individually and in his official capacity, Grantt Culliver, Warden, Holman Correctional Facility, in his individual and official capacity, Defendants-Appellees.
No. 07-14956.
United States Court of Appeals, Eleventh Circuit.
Oct. 25, 2007.
Christine A. Freeman and Anne Borelli, Fed. Pub. Defenders, Montgomery, AL, for Siebert.
Before TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
Chief Judge Edmondson has not participated in this order. Judges Ed Carnes and William H. Pryor Jr. have recused themselves and will not participate.
[OPINION BY BY THE COURT: type=majority]
BY THE COURT:
A member of this court in active service having requested a poll on the Petition for Rehearing En Banc filed by the Defendants-Appellees on 25 October 2007, and a majority of the judges of this court in active service (available and not recused) having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above cause shall be reheard by this court en banc. The opinion and stay entered by the panel on 24 October 2007 is hereby VACATED. The en banc Court sua sponte hereby STAYS the execution of the Plaintiff-Appellant pending further en banc consideration of this case.
Daniel Lee SIEBERT, Plaintiff-Appellant, v. Richard ALLEN, Commissioner, Alabama Department of Corrections, individually and in his official capacity, Grantt Culliver, Warden, Holman Correctional Facility, in his individual and official capacity, Defendants-Appellees.
No. 07-14956.
United States Court of Appeals, Eleventh Circuit.
Nov. 5, 2007.
Christine A. Freeman and Anne Borelli, Fed. Pub. Defenders, Montgomery, AL, for Siebert.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
We sua, sponte vacate and reconsider our original opinion and substitute the following.
Daniel L. Siebert appeals the district court’s denial of his Emergency Motion for Preliminary Injunction to Stay Execution and requests a postponement of execution. We conclude that the district court erred in refusing to enjoin the Commissioner from carrying out Siebert’s execution pending the court’s final disposition of his “as-applied” claim, i.e., that the three-drug protocol to be used by Alabama during his execution by lethal injection, as applied to him, would violate his Eighth and Fourteenth Amendment rights to be free from cruel and unusual punishment. We therefore reverse the district court’s order and remand the ease for further consideration of Siebert’s claim.
Siebert’s federal habeas challenge to his conviction and death sentence for the murders of Sherri Weathers and her two sons was denied certiorari by the United States Supreme Court on March 19, 2007. On April 9, 2007, Siebert filed a 42 U.S.C. § 1983 suit in the Middle District of Alabama challenging the constitutionality of the State’s three-drug protocol for his execution by lethal injection on the ground that it creates an unnecessary risk of severe pain and suffering. In late May 2007, Siebert was stricken with severe jaundice and diagnosed with hepatitis C. A biopsy was taken on July 12, 2007, and Siebert was diagnosed with pancreatic cancer as well. On July 19, 2007, Siebert immediately filed an Amended Complaint restating the allegations in his first complaint and adding the claim that, as applied to him specifically, the three-drug protocol would constitute cruel and unusual punishment in violation of the Constitution because of substantial complications likely to arise due to his serious illnesses. The Alabama Supreme Court thereafter entered an order setting October 25, 2007, as the date of Siebert’s execution.
On October 3, 2007, the district court granted the Commissioner’s motion to dismiss Siebert’s § 1983 claim to the extent that it mounted a general challenge to the constitutionality of Alabama’s three-drug protocol, finding that Siebert had delayed unnecessarily in bringing that claim. However, the court denied the Commissioner’s motion to dismiss Siebert’s “as-applied” § 1983 claim. Because the factual predicate for that claim — namely, Siebert’s diagnosis of pancreatic cancer and hepatitis C — -was not in place until late May 2007, the court concluded that Siebert did not unreasonably delay in bringing his claim. Noting that dismissal was also not warranted on statute-of-limitations grounds, the court held that this “as-applied” claim “survive[s] and will be litigated.” A scheduling conference was accordingly set for October 10, 2007, on that claim.
On October 9, 2007, Siebert moved the district court to enjoin his execution. The court acknowledged that the motion was timely but concluded that Siebert had not satisfied the requisites for a preliminary injunction. Specifically, the court held that Siebert had not demonstrated a substantial likelihood that he would eventually prevail on the merits of his “as-applied” challenge. Whether Siebert could ultimately prevail on his “as-applied” challenge would have to await further proceedings, perhaps a trial on the merits.
The district court correctly stated the four factors to be considered in determining whether preliminary injunctive relief is to be granted, which are whether the movant has established: (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. See, e.g., Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225-26 (11th Cir.2005).
We conclude that the district court abused its discretion in denying preliminary injunctive relief as to Siebert’s “as-applied” claim. The district court found that Siebert’s “as-applied” claim was timely filed immediately upon diagnosis of Siebert’s hepatitis C and terminal pancreatic cancer and thus as soon as he could have brought it. Specifically, Siebert’s “as-applied” claim derives from his recent diagnosis of hepatitis C and inoperable pancreatic cancer, including but not limited to obstruction of his upper gastrointestinal tract (“GI tract”) due to a cancerous tumor. The district court noted that Siebert has a feeding tube, suffers from chronic nausea and tumor-related pain, and has been losing weight. Dr. Jimmie H. Harvey, Jr., a board-certified medical oncologist, reviewed Siebert’s medical records and opined, among other things, that Siebert’s life expectancy is less than 90 days and that there is a “great likelihood” that Siebert would regurgitate stomach content when administered the current three-drug protocol and aspirate prior to death. Moreover, Dr. Harvey stressed, in this regard, Siebert’s malignancy and the physiology of his upper GI tract at this particular time. Because Siebert is “cachectic,” which the district court found means “having physical wasting with loss of weight and muscle mass due to disease,” Dr. Harvey also noted that Siebert will have “very compromised venous access” due to his particular serious medical conditions. Additionally, Dr. Harvey reported that due to “the inevitable death related to this malignancy, Mr. Siebert has elected to receive no palliative chemotherapy or radiation therapy.”
Given the timeliness of the filing of Siebert’s “as-applied” claim, Dr. Harvey’s evaluation and the unique situation presented by Siebert’s terminal pancreatic cancer, we conclude that the district court erred in determining that Siebert failed to show a substantial likelihood of success on the merits of his “as-applied” claim. Therefore, it was an abuse of discretion for the district court to deny Siebert’s motion for a preliminary injunction as to the “as-applied” challenge to Alabama’s three-drug protocol.
Accordingly, we AFFIRM the district court’s denial of a preliminary injunction on Siebert’s general challenge to Alabama’s three-drug protocol. See Williams, 496 F.3d at 1212-13 (quoting Grayson, 491 F.3d at 1322). We REVERSE the district court’s denial of Siebert’s Emergency Motion for a Preliminary Injunction on Siebert’s “as-applied” claim, and we REMAND the case for consideration of Siebert’s “as-applied” claim on the merits. The stay previously entered by this Court shall remain in effect until the time that the district court has entered judgment on the merits.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
While the district court states late May 2007, it appears the actual diagnosis of pancreatic cancer was even later than that.
While the district court conducted de novo review of Siebert's claim, we review the district court’s denial of injunctive relief only for an abuse of discretion. “This scope of review will lead to reversal only if the district court applies an incorrect legal standard, or applies improper procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion that is clearly unreasonable or incorrect.” Schiavo, 403 F.3d at 1226; see also Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th Cir.2004); Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11th Cir.2001). "Short of that, an abuse of discretion standard recognizes there is a range of choices within which we will not reverse the district court even if we might have reached a different decision.” Schiavo, 403 F.3d at 1226; see also McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir.2001); In re Rasbury, 24 F.3d 159, 168-69 (11th Cir.1994). .The reversal of the district court’s denial of the preliminary injunction relates to only Siebert’s "as-applied” claim, as to which the district court denied the motion to dismiss. We affirm the district court’s denial of a preliminary injunction on Siebert’s general challenge to Alabama’s three-drug protocol, which the district court dismissed on the grounds that Siebert unreasonably and unnecessarily delayed in bringing said claim until his execution was imminent. See Williams v. Allen, 496 F.3d 1210, 1215 (11th Cir.2007), cert. dismissed, -U.S. -, 128 S.Ct. 370, 169 L.Ed.2d 4 (2007) (No. 07-6034); Grayson v. Allen, 491 F.3d 1318, 1322 (11th Cir.2007) ("Grayson II"), cert. denied,-U.S.-, 128 S.Ct. 6, 168 L.Ed.2d 784 (2007) (No. 07-5457); Jones v. Allen, 485 F.3d 635, 639-40 (11th Cir.2007), cert. denied, - U.S. -, 127 S.Ct. 2160, 167 L.Ed.2d 887 (2007); Rutherford v. McDonough, 466 F.3d 970, 973-74 (11th Cir.2006), cert. denied,-U.S.-, 127 S.Ct. 465, 166 L.Ed.2d 331 (2006).
In light of this Court's sua sponte stay in its October 25, 2007 order, we deny as moot Siebert's Motion for Stay of Execution filed in this Court on October 23, 2007.
Daniel Lee SIEBERT, Plaintiff-Appellant, v. Richard ALLEN, Commissioner, Alabama Department of Corrections, individually and in his official capacity, Grantt Culliver, Warden, Holman Correctional Facility, in his individual and official capacity, Defendants-Appellees.
No. 07-14956.
United States Court of Appeals, Eleventh Circuit.
Nov. 5, 2007.
Christine A. Freeman and Anne Borelli, Fed. Pub. Defenders, Montgomery, AL, for Siebert.
Chief Judge Edmondson has not participated in this order. Judges Ed Carnes and William H. Pryor Jr. have recused themselves and have not participated.
[OPINION BY BY THE COURT: type=majority]
ON PETITION FOR REHEARING EN BANC
Before TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
BY THE COURT:
The order granting en banc rehearing in this appeal, 504 F.3d 1341, 2007 WL 3104941, dated 25 October 2007 is VACATED, and the case is REMANDED to the panel for consideration of the issues raised by State of Alabama in its Petition for Rehearing En Banc.
Daniel SIEBERT, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
No. 06-11841.
United States Court of Appeals, Eleventh Circuit.
Jan. 7, 2008.
Anne Borelli and Leslie S. Smith (Court-Appointed) Fed. Defenders, La-Juana S. Davis (Court-Appointed), Equal Justice Initiative of AL, Montgomery, AL, for Siebert.
J. Clayton Crenshaw, Montgomery, AL, Kevin Christopher Newsom, Bradley, Ar-ant, Rose & White, LLP, Birmingham, AL, for Allen.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
ORDER:
Based upon our review of Petitioner-Appellant’s Motion for Clarification filed January 4, 2008, and given that jurisdiction over this case remains with the United States Supreme Court until rehearing is resolved and their final judgment issues, we vacate this Court’s December 21, 2007 opinion on remand from the Supreme Court of the United States.
Daniel SIEBERT, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
No. 06-11841.
United States Court of Appeals, Eleventh Circuit.
Feb. 25, 2008.
Anne Borelli and Leslie S. Smith (Court-Appointed), Fed. Defenders, Fed. Defenders Office, LaJuana S. Davis (Court-Appointed), Equal Justice Initiative of AL, Montgomery, AL, for Siebert.
J. Clayton Crenshaw, Montgomery, AL, Kevin Christopher Newsom, Bradley, Ar-ant, Rose & White, LLP, Birmingham, AL, for Allen.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
This case comes to us on remand from the Supreme Court of the United States. See Allen v. Siebert, 552 U.S. -, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007), rev’g Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007). In accordance therewith, we hereby AFFIRM the district court’s dismissal of Siebert’s federal habeas petition as being untimely filed pursuant to 28 U.S.C. § 2244(d).
AFFIRMED.