REL:08/29/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1121399
____________________
Ex parte William Keith Robey
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
William Keith Robey)
(Jefferson Circuit Court, CC-95-4454 and CC-95-4455)
PER CURIAM.
PETITION DENIED. NO OPINION.
1121399
Stuart, Bolin, Parker, Shaw, Wise, and Bryan, JJ.,
concur.
Moore, C.J., and Murdock, J., dissent.
Main, J., recuses himself.
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MOORE, Chief Justice (dissenting).
William Keith Robey petitioned this Court for a writ of
mandamus to order Judge Alfred Bahakel, Jefferson Circuit
Court, to grant Robey's application for in forma pauperis
("IFP") status1 and to waive prepayment of the filing fee for
a Rule 32, Ala. R. Crim. P., petition seeking postconviction
relief. This Court today denies Robey's petition. For the
reasons stated below, I dissent.
I. Facts and Procedural History
On June 13, 2013, Robey filed his fourth Rule 32 petition
accompanied by an application for IFP status. Attached to the
application was a report of the activity in Robey's inmate
account for the preceding 12 months that showed total deposits
of $415 or an average of $34.58 per month. On June 19, 2013,
Judge Bahakel summarily denied Robey's application for IFP
status. Robey then filed a petition for a writ of mandamus
with the Court of Criminal Appeals to compel the circuit court
to grant him IFP status. In its order of August 23, 2013,
1
"In forma pauperis" means "[i]n the manner of an indigent
who is permitted to disregard filing fees and court costs."
Black's Law Dictionary 899 (10th ed. 2014).
3
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denying Robey's petition, the Court of Criminal Appeals
stated:
"Currently, the fee for filing a postconviction
petition in the Jefferson Circuit Court is $206.
Robey's inmate account summary shows that in the 12
months preceding the filing of the Rule 32 petition
he had deposits to his inmate account in the amount
of $415. [Robey] could have saved the money to pay
the filing fee and is not indigent. See Ex parte
Wyre, 74 So. 3d 479, 482 (Ala. Crim. App. 2011)."
Robey then petitioned this Court for a writ of mandamus,
arguing that Ex parte Wyre, 74 So. 3d 479 (Ala. Crim. App.
2011), upon which the Court of Criminal Appeals relied in
denying his mandamus petition, conflicted with previous cases
that determined an inmate's indigency as of the date of the
filing of a Rule 32 petition and did not use a retrospective
"could-have-saved" rule. See Ex parte Beavers,
779 So. 2d
1223, 1224-25 (Ala. 2000); Ex parte Dozier,
827 So. 2d 774,
776 (Ala. 2002). He also argued that the rule in Wyre denied
indigent prisoners access to the courts and was thus
unconstitutional. On November 27, 2013, we ordered the circuit
judge and the State of Alabama to answer Robey's petition.
Because Judge Bahakel had retired early in 2013, Judge
Bill Cole, who assumed Judge Bahakel's docket, responded to
our order, stating, in part:
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"The undersigned is aware that individuals
frequently abuse the privilege of being able to file
a Rule 32 Petition. If inmates are allowed to spend
any money they receive knowing that they can then
file a Rule 32 without cost, they would probably be
more willing to file a frivolous Rule 32. These
petitions can require the State of Alabama and the
judges presiding over the case to spend several
hours ruling on an issue that has already been
raised or that the petitioner may know is without
merit. To abandon any consideration of the amount of
money that has been in an inmate's prison account
during the last year could cause abuse of the
important relief individuals are allowed though Rule
32 of the Alabama Rules of Criminal Procedure."
II. Standard of Review
"A writ of mandamus is an extraordinary remedy that
requires the showing of: (1) a clear legal right in the
petitioner to the order sought; (2) an imperative duty on the
respondent to perform, accompanied by a refusal to do so; (3)
the lack of another adequate remedy; and (4) the properly
invoked jurisdiction of the court." Ex parte McNaughton, 728
So. 2d 592, 594 (Ala. 1998). A trial court's refusal to grant
IFP status to an indigent prisoner seeking postconviction
relief makes it impossible for the prisoner to file a Rule 32
petition. "[I]n the absence of a docket fee ... or an approved
in forma pauperis declaration, the petition for
[postconviction] review was never properly before the trial
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court." Goldsmith v. State, 709 So. 2d 1352, 1352-53 (Ala.
Crim. App. 1997). Because "refusal of the circuit court to
accept a petition is not a final judgment,"
id. at 1353, the
remedy of appeal is unavailable.
Thus, Robey satisfies the third part of the mandamus
test: the lack of another adequate remedy. For this reason,
"mandamus, and not appeal, is the proper method by which to
compel the circuit court to proceed on an in forma pauperis
petition." Goldsmith, 709 So. 2d at 1353. Robey properly
invoked the jurisdiction of this Court by timely filing a
petition for a writ of mandamus directed to the circuit court
within 14 days of the decision of the Court of Criminal
Appeals. Rule 21(e), Ala. R. App. P. The only issue remaining
is whether Robey had a clear legal right to IFP status that
the circuit court had an imperative duty to recognize.
III. Analysis
In Wyre, the Court of Criminal Appeals held that an
inmate who had "more than twice the amount" necessary to pay
a filing fee deposited in his inmate account in the previous
12 months was not indigent and that "an inmate who has
appreciably more than the amount necessary to pay a filing fee
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deposited in his inmate account in the 12 months preceding the
filing of an IFP request is not indigent as that term is
defined in Rule 6.3(a), Ala. R. Crim. P." 74 So. 3d at 482.
The Court of Criminal Appeals in dicta has encouraged trial
courts to use the Wyre rule to deny IFP status to Rule 32
petitioners. See State v. Thomas, [CR-10-1401, May 25, 2012]
___ So. 3d ___ n.3 (Ala. Crim. App. 2012); Yocum v. State,
107
So. 3d 219 n.1 (Ala. Crim. App. 2011).
The quantity and often questionable quality of Rule 32
petitions is a valid concern for the judiciary. The Wyre rule,
however, is inconsistent with precedent of this Court
governing the methodology for determining prisoner indigency.
Additionally, alternative remedies are available to
effectively deter frivolous Rule 32 filings without closing
the courthouse door on prisoners who lack the current means to
pay a filing fee.
A. The Volume of Postconviction Litigation
Judge Cole's concern about reducing the number of
meritless Rule 32 petitions is valid. "We do not favor
continuous, repetitious or frivolous petitions on matters
which have been finally adjudicated." Allison v. State, 277
7
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Ala. 423, 424,
171 So. 2d 239, 239 (1965). See also Ex parte
Coleman,
728 So. 2d 703, 705 (Ala. 1998) ("The barrage of
postconviction petitions has caused numerous delays in the
judicial process and problems in enforcing judgments.").
The challenge of managing a flood of often questionable
prisoner litigation is not new. In 1961, the Alabama Court of
Appeals stated:
"We are now receiving a large number of various
sorts of documents from prisoners confined in the
penitentiaries of this State, seeking extraordinary
writs. Apparently encouraged by recent decisions of
the Federal courts, they do not hesitate to make the
most extravagant claims of deprivation of
constitutional rights in their trials in the courts
of this State. It is often difficult for the court
below and for this court to determine just what
relief these documents are seeking, other than the
authors want out of the penitentiary."
Warden v. State, 41 Ala. App. 449, 450,
134 So. 2d 783, 784
(1961). This Court, noting that "[f]inality of a criminal
judgment and sentence today is as outmoded as the Model-T,"
expressed concern at the heavy toll this "mockery of our
judicial system" exacted. Cooper v. Wiman,
273 Ala. 699, 700,
145 So. 2d 216, 217 (1962).
"The petitioners take great comfort in the fact that
no matter how frivolous their allegations or how
utterly deficient their pleadings may be, the state
must respond to these ofttimes unintelligible
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pleadings, letters or memorandums, and/or proceed to
costly and time-consuming hearings. The petitioners
have nothing to lose, for they know that the very
least they can obtain is a day away from their
prison surroundings."
273 Ala. at 701,
145 So. 2d at 217.2
B. Determining Prisoner Indigency
Effective January 1, 1991, this Court adopted the Alabama
Rules of Criminal Procedure, which defined an indigent as "a
person who is financially unable to pay for his or her
defense." Rule 6.3(a), Ala. R. Crim. P. An inmate claiming
indigency could seek a waiver of the filing fee for a
postconviction petition by attaching to the petition an "In
Forma Pauperis Declaration." At the time of the adoption of
the Alabama Rules of Criminal Procedure, Rule 32.6(a) read as
follows, in pertinent part:
"In all such cases, the petition shall also be
accompanied by a certificate of the warden or other
appropriate officer of the institution in which the
petitioner is confined as to the amount of money or
securities on deposit to the petitioner's credit in
any account in the institution, which certificate
may be considered by the court in acting upon his
application for leave to proceed in forma pauperis."
2
Currently, Rule 32 petitions constitute 24% of the cases
filed in the Alabama Court of Criminal Appeals -- about 500
filings per year. Alabama Unified Judicial System Fiscal Year
2012 Annual Report and Statistics, at 9.
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The appendix to Rule 32 elaborated at paragraph (7):
"If you do not have the necessary fee, you may
request permission to proceed in forma pauperis, in
which event you must complete the declaration at the
end of this form, setting forth information
establishing your inability to pay the fees and
costs or give security therefor. Your declaration
must include financial information relating to the
twelve (12) months preceding the filing of this
petition."
The IFP declaration requires the inmate to disclose the "total
value" of the inmate's prison account and the amount of money
received from every source "during the past twelve months." At
the end of the IFP declaration is a certificate for a prison
official to complete as to the amount in the prisoner's
account at the "institution where he is confined." Appendix to
Rule 32. If the trial court grants the petitioner IFP status,
the clerk of court "shall file the petition" without
prepayment of the filing fee. Rule 32.6(a).
During the first decade that the IFP procedure of Rule
32.6(a) was in effect, prisoners complained that the trial
court, despite a demonstration of indigency, refused to grant
IFP status. The Court of Criminal Appeals was responsive to
these complaints. See Lucas v. State, 597 So. 2d 759, 760
(Ala. Crim. App. 1992) (reversing denial of IFP status when
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"there has never been any more than $31.47 in the petitioner's
account at any one time" and the filing fee was $95); Robinson
v. State, 629 So. 2d 5, 5 (Ala. Crim. App. 1993) (reversing
denial of IFP status when prisoner's IFP declaration "states
that the only money available to the appellant is $6.25, which
is in his prison account"); Stafford v. State,
647 So. 2d 102
(Ala. Crim. App. 1994) (reversing denial of IFP status when
filing fee was $110, prisoner's account contained $91.83 at
the time of filing, the highest monthly balance in the account
in the previous nine months was $104.33, and the average
balance for that period was $63.15); Griggs v. State,
659 So.
2d 1044 (Ala. Crim. App. 1995) (reversing denial of IFP status
when prisoner had only $1.10 in his inmate account when he
filed his Rule 32 petition); Powell v. State,
674 So. 2d 1259,
1260 (Ala. Crim. App. 1995) (reversing denial of IFP status
when prisoner had $1.00 in his prison account when he
attempted to file the petition, the filing fee was $110, and
thus "it appear[ed] that the appellant [was] indigent");
Hawkins v. State,
675 So. 2d 1359 (Ala. Crim. App. 1995)
(reversing denial of IFP status because "[f]rom examining the
appellant's prison account balances, we conclude that the
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appellant is indigent"); Malone v. State, 687 So. 2d 218 (Ala.
Crim. App. 1996) (reversing denial of IFP status when prisoner
showed a balance of $15.04 in his prison account on the filing
date, the maximum balance in the account over the previous
four months was $60.21, and the filing fee was $110); Cummings
v. State,
687 So. 2d 1290 (Ala. Crim. App. 1996) (reversing
denial of IFP status when prisoner had $31.49 in his prison
account when he filed the petition and the filing fee was
$110); Ex parte
Coleman, supra (reversing denial of IFP status
where certificate attached to IFP declaration showed $.29 in
inmate's prison account); Ex parte Ferrell,
819 So. 2d 83
(Ala. Crim. App. 2001) (finding that prisoner satisfied
definition of indigency in Rule 6.3(a) when he had a balance
of $.17 in his prison account on the filing date, the maximum
balance in the account in prior months was $40, and the filing
fee was $140); and Ex parte Spence,
819 So. 2d 106, 106 (Ala.
Crim. App. 2001) (ordering the trial court to allow the
petitioner "to file his Rule 32 petition without the
prepayment of a filing fee" where his inmate account had $2.06
on deposit at the time of filing).
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During that period the Court of Criminal Appeals
uniformly granted IFP status when the balance in an inmate's
prison account on the date the Rule 32 petition was filed was
less than the filing fee and the prisoner's account balance
had never exceeded the filing fee in previous months. The
opinions of this Court affirmed these principles. In Ex parte
Hurth, 764 So. 2d 1272 (Ala. 2000), the trial court relied on
a "could-have-saved" argument to deny the petitioner IFP
status: "'The Court has reviewed the petitioner's prison fund.
The defendant can save the usual [amount] deposited to his
account until he has sufficient funds to pay a filing fee in
this case. Petition to proceed in forma pauperis is denied.'"
Hurth,
764 So. 2d at 1273. Although Hurth's account statement
showed an average monthly deposit of $23.57, this Court did
not agree with the trial court that Hurth was not indigent
because he "could have" saved that amount for six months to
accumulate the $140 filing fee. Instead we ordered the trial
court to approve Hurth's IFP application. Our indigency
analysis relied primarily upon Hurth's financial position at
the time he filed his Rule 32 petition.
"[T]he facts before this Court indicate that Hurth
was indigent when he filed his petition for
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post-conviction relief. See, e.g., Malone v. State,
687 So. 2d 218, 219 (Ala. Crim. App. 1996) (holding
that the petitioner was indigent -- his prison fund
had shown a balance of $15.04 on the day before he
filed his Rule 32 petition, and his account had
never contained more than $60.21 during the four
months before he filed his petition)."
Hurth, 764 So. 2d at 1274.
In Ex parte Beavers, supra, the prisoner's sister sent
him $10 per week, his account balance at time he filed his
Rule 32 petition was zero, and the filing fee was $140.
Although Beavers theoretically could have saved the $140
filing fee from deposits received in prior months, we
nonetheless reversed the trial court's order denying him IFP
status.
"Although Beavers's in forma pauperis declaration
indicated that his sister sent him $10 per week, the
accompanying certificate indicated that he had a
zero balance in his prison account on the day he
filed his Rule 32 petition. Thus, the evidence
before us suggests that Beavers was, in fact,
indigent."
779 So. 2d at 1224-25. Finally, in Ex parte Dozier,
827 So. 2d
774, 776 (Ala. 2002), we held that a petitioner who "had a
zero balance in his prison account when he filed his Rule 32
petition" was unable to pay a $140 filing fee despite the
fact, as the dissent pointed out, that the prisoner had spent
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over $100 on canteen sales in each of the preceding two
months. In Dozier we cited Hurth and Beavers and three similar
opinions of the Court of Criminal Appeals -- Ferrell, Coleman,
and Malone.
In Hurth, Beavers, and Dozier, we also stressed that
refusing to accept Rule 32 filings from prisoners who, at the
time of filing, lacked the funds to pay a filing fee raised
troubling constitutional questions. In Hurth we stated:
"'To impose any financial consideration between an
indigent prisoner and the exercise of his right to
sue for his liberty is to deny that prisoner equal
protection of the laws.' Hoppins v. State, 451 So.
2d 363, 364 (Ala. Crim. App.1982) (citing Smith v.
Bennett, 365 U.S. 708,
81 S. Ct. 895,
6 L. Ed. 2d 39
(1961)). 'While habeas corpus may, of course, be
found to be a civil action for procedural purposes,
it does not follow that its availability in testing
the State's right to detain an indigent prisoner may
be subject to the payment of a filing fee.' Smith,
365 U.S. at 712,
81 S. Ct. 895. (Citation omitted.)
'[I]n order to prevent "effectively foreclosed
access" [to the courts], indigent prisoners must be
allowed to file appeals and habeas corpus petitions
without payment of docket fees.' Bounds v. Smith,
430 U.S. 817, 822,
97 S. Ct. 1491,
52 L. Ed.2d 72
(1977)."
Hurth, 764 So. 2d at 1274. In Beavers, we repeated the
quotations in Hurth from Hoppins v. State,
451 So. 2d 363, 364
(Ala. Crim. App. 1982), and Bounds v. Smith
430 U.S. 817
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(1977). 779 So. 2d at 1224. In Dozier, we quoted Beavers'
statement of these principles.
827 So. 2d at 775-76.
Thus, Robey is quite correct in arguing that the "could-
have-saved" rule adopted in 2011 in Wyre directly conflicts
with earlier cases decided both by this Court and by the Court
of Criminal Appeals. The attorney general's brief does not
dispute this point.
Effective August 1, 2002, this Court amended Rule 32.6(a)
to require that the prison certificate accompanying the
inmate's IFP declaration must state the amount on deposit "for
the previous twelve (12) months." The addition of this phrase
to the rule, however, cannot be viewed as authorizing the
Court of Criminal Appeals to abandon the previous practice of
determining indigency by comparing the filing fee with the
balance in the inmate's account on the date of filing or the
maximum balance in previous months. A year after the
amendment, the Court of Criminal Appeals denied IFP status to
an inmate facing a $149 filing fee whose prison account showed
"monthly balances as high as $185." Ex parte Holley, 883 So.
2d 266, 269 (Ala. Crim. App. 2003). That decision is
consistent with the prior practice of comparing the filing fee
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with the maximum monthly balance in an inmate's account.
Holley departed from precedent, however, in not also placing
significant weight on the balance in the inmate's account at
the time of the filing of the Rule 32 petition.
The maximum-monthly-balance rule, however, is a far cry
from the 2011 decision in Wyre to base the determination of
indigency on a comparison of the filing fee with the total
deposits for the 12 months preceding the filing. The annual
deposit total, for example, is 12 times the average monthly
deposit. Using Wyre's annual-sum-of-deposits calculation as
the threshold for indigency means that a prisoner like Robey,
who had an average monthly income of $34.58, would not be
considered indigent though he had only $27.45 in his account
at the time of filing and was faced with the payment of a $206
filing fee, which represented almost six times his average
monthly deposit. Wyre's drastic alteration of the method for
calculating indigency is inconsistent with governing precedent
of this Court interpreting Rule 6.3(a) and Rule 32.6(a).3
3
Requiring a prisoner like Robey to save every penny of
his income for six months to prepay a filing fee could also
preclude access to the courts by allowing the statute of
limitations for filing a Rule 32 petition to expire while the
prisoner was saving for the filing fee. Rule 32.2(c), Ala. R.
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C. Alternative Means of Deterring Meritless Filings
Judge Cole's concern that allowing indigent prisoners "to
file a Rule 32 without cost" will overwhelm the courts with
meritless filings may be alleviated under current law without
denying equal protection of the laws to poor prisoners or
abandoning the precedent of Hurth, Beavers, and Dozier. Since
1975 Alabama law has provided for the imposition of indigent
filing fees after the fact. "The docket fee may be waived
initially and taxed as costs at the conclusion of the case if
the court finds that payment of the fee will constitute a
substantial hardship." § 12-19-70(b), Ala. Code 1975. See Ex
parte Coleman, 728 So. 2d at 707 (noting that a trial court
"may protect itself from prolific litigants" by "tax[ing] the
fee as costs at the end of the proceeding") (citing § 12-19-
70(b)); Ex parte Beavers,
779 So. 2d at 1224 (noting the
provision in § 12-19-70(b) for an initial waiver of the docket
fee for an indigent prisoner followed by an imposition of the
fee at the conclusion of the case); Castillo v. State,
786 So.
2d 1147, 1149 (Ala. Crim. App. 2000) (noting that "the court
Crim. P. For a discussion of this point, see Ex parte Johnson,
123 So. 3d 953, 954 (Ala. 2013) (Moore, C.J., dissenting).
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may properly tax the cost of the filing fee to the petitioner
at the conclusion of the case, even if the petitioner has
previously been determined to be indigent"); and Neal v.
State, 803 So. 2d 586, 588 (Ala. Crim. App. 2001) (noting that
"docket fees can be waived for indigent petitioners because of
the processes that allow an indigent inmate to repay those
costs").
In 2002 this Court amended Rule 32.6(a) to add language
allowing for after-the-fact recovery of indigent filing fees:4
"If the application to proceed in forma pauperis is
granted, the filing fee shall be waived. If, upon
final disposition of the petition, the court finds
that all of the claims for relief are precluded for
any of the reasons stated in Rule 32.2, it may
assess the filing fee, or any portion thereof, and
order the correctional institution having custody of
the petitioner to withhold 50% of all moneys the
institution then has on deposit for the petitioner,
or receives in the future for the petitioner, until
the filing fee that has been assessed by the court
has been collected and paid in full."
(Emphasis added.) Thus, a prisoner who files a meritless
petition is subject to a lien on his inmate account of 50% of
future deposits until the filing fee is paid in full. Section
12-19-70(b) and the more detailed recovery language of Rule
4
The language was subsequently moved to Rule 32.7(e), Ala.
R. Crim. P. See discussion infra.
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32.6(a) work together to provide that an indigent inmate who
files a meritless petition is liable for repayment of the
filing fee from his prison account. See Clemons v. State, 55
So. 3d 314, 334 & n.8 (Ala. Crim. App. 2003) (noting that
"[s]ection 12-19-70, Ala. Code 1975, applies to Rule 32
petitions" and quoting from the recovery section of Rule
32.6(a)). Effective November 28, 2012, the recovery language
in Rule 32.6(a) was moved to Rule 32.7(e), Ala. R. Crim. P.
("Assessment of Filing Fee"). In addition to the preclusion
grounds of Rule 32.2, the new Rule 32.7(e) added two
additional grounds for recovery of the filing fee, namely that
the claims for relief "are lacking in specificity as required
by Rule 32.6(b), or fail to state a claim of law or fact that
is meritorious."
A petitioner whose claim survives summary dismissal under
Rule 32.7(d), Ala. R. Crim. P., and is therefore entitled to
an evidentiary hearing is not subject to recovery of the
filing fee under Rule 32.7(e). Thus, a lien is placed on an
indigent prisoner's account for recovery of a filing fee only
if the petition itself is meritless. Section 12-19-70 and Rule
32.7(e), if implemented by the trial courts, provide a strong
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disincentive for prisoners to file frivolous Rule 32
petitions. The practice of denying IFP status to prisoners who
currently are financially unable to pay a filing fee, but who
theoretically could have saved the money for the fee over the
previous year, seems incompatible with the plain language of
Rule 6.3(a). The Wyre rule also places an obstacle in the path
of poor prisoners that those with more assets do not face,
thus raising the constitutional issues that this Court
identified in Hurth, Beavers, and Dozier.
In 1996, concerned about the rising tide of prisoner
litigation, Congress passed the Prison Litigation Reform Act
("PLRA"). A section of the PLRA, codified at 28 U.S.C. § 1915,
requires that an indigent prisoner, "when funds exist," pay
20% of the balance in the inmate's account as a down payment
on a filing fee.
28 U.S.C. § 1915(b)(1). Twenty per cent of
the funds in the inmate's prison account are requisitioned
every month thereafter, so long as the balance in the account
is above $10, until the fee is paid in full.
28 U.S.C. §
1915(b)(2). Rather than foreclosing an indigent inmate from
filing a petition until the full filing fee has been saved,
the PLRA, like Rule 32.7(e), allows recovery of the fee after
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the conclusion of the case, thus eliminating access-to-the-
courts and equal-protection issues.5 The PLRA specifically
emphasizes that "[i]n no event shall a prisoner be prohibited
from bringing a civil action ... for the reason that the
prisoner has no assets and no means by which to pay the
initial partial filing fee." 28 U.S.C. § 1915(b)(4). The
federal policy of allowing indigents freely to file petitions
and then providing for recovery of the filing fee by an
assessment against the inmate's account at the conclusion of
the case had a noticeable deterrent effect. "The [PLRA] has
been highly successful in reducing litigation, triggering a
forty-three percent decline over five years, notwithstanding
the simultaneous twenty-three percent increase in the
5
The attorney general argues that federal law requires a
showing that a prisoner's petition has merit before IFP status
will be granted on an access-to-the-courts claim. State's
brief, at 10-14. Under Alabama law, however, a trial court
does not have subject-matter jurisdiction to consider the
merits of a Rule 32 petition until the IFP issue has been
resolved and the filing fee has been either paid or waived. Ex
parte Carter, 807 So. 2d 534, 536-37 (Ala. 2001). In any
event, the equal-protection issue, which is distinct from an
access-to-the-courts claim, is also fully implicated by the
Wyre rule.
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incarcerated population." Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555, 1694 (2003).6
Enforcing the provisions of Rule 32.7(e) and § 12-19-70
is wiser in my view than leaving in place a barrier to filing
-- the Wyre rule -- that is constitutionally questionable,
unspecified in rule or statute, and incompatible with this
Court's decisions on this issue.
IV. Remedy
Because Wyre is inconsistent with our prior cases on
determining indigency, Robey, in my opinion, is entitled to
relief. However, the proper remedy is not obvious. After the
Court of Criminal Appeals denied Robey's petition for a writ
of mandamus, he did not have the option of asking this Court
to correct that ruling: "If an original petition for
extraordinary relief has been denied by the court of appeals,
review may be had by filing a similar petition in the supreme
court (and, in such a case, in the supreme court the petition
shall seek a writ directed to the trial judge)." Rule
6
In 2013, the Alabama Legislature enacted the Alabama
Prisoner Litigation Reform Act ("APLRA"), § 14-15-1 et seq.,
Ala. Code 1975. Although similar in substance to the PLRA, the
APLRA does not apply to Rule 32 petitions. § 14-15-2, Ala.
Code 1975.
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21(e)(1), Ala. R. App. P. Bound by Rule 21, Robey had no
choice but to direct his petition in this Court to the trial
judge rather than to the Court of Criminal Appeals. Thus,
although Robey had a clear legal right to have his IFP
application considered under the proper legal standard, the
trial judge, obeying the Court of Criminal Appeals in applying
Wyre, cannot be said to have had an "imperative duty" to
disregard Wyre and adopt our controlling precedent.
Under the peculiar posture of this case, I would decline
to issue a writ of mandamus to the trial judge, who followed
what he understood to be valid direction from the Court of
Criminal Appeals. Instead, I would order the trial court to
reconsider Robey's IFP application in keeping with the
governing precedent expounded in Hurth, Beavers, and Dozier,
and the available remedies in § 12-19-70 and Rule 32.7(e).
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