I concur to affirm the summary denial of Dowdell's Rule 32, Ala.R.Crim.P., petition for postconviction relief, although not for the reasons stated by the majority.
Like Judge Baschab, who filed a dissenting opinion in this case, I fully recognize the need for, and the importance of, postconviction DNA testing in certain cases — especially in capital-murder cases in which the death penalty has been imposed.
New Jersey v. Thomas, 245 N.J. Super. 428, 435, 586 A.2d 250, 253-54 (1991) (discussing postconviction requests for DNA testing). In Dabbs v.Vergari, 149 Misc.2d 844, 850, 570 N.Y.S.2d 765, 769 (N.Y.Sup.Ct. 1990) (also discussing postconviction requests for DNA testing), the court noted:"A criminal trial is not a lottery, a spin of the roulette wheel or a throw of the dice. The orderly processing of cases through the court is an important value, but it is not the end in itself. It is only the method by which we attempt to achieve the ultimate purpose of the criminal justice system — the fair conviction of the guilty and the protection of the innocent. That is what our constitutional guarantees are all about. Our system fails every time an innocent person is convicted, no matter how meticulously the procedural requirements governing criminal trials are followed."
"Consistent with society's `overriding concern with the justice of the finding of guilt' (United States v. Agurs, 427 U.S. [97,] 112 [(1976)]), the courts, as well as the prosecution, must be vigilant to correct a mistake. `It is the State that tries a man, and it is the State that must insure that the trial is fair' (Moore v. Illinois, 408 U.S. 786, 810 [(1972)] [Marshall, J., concurring in part and dissenting in part]). Put another way, '[t]he State's obligation is not to convict, but to see that, so far as possible, truth emerges' (Giles v. Maryland, 386 U.S. 66, 98 [(1967)] [Fortas, J., concurring]). `When evidence favorable to the defendant is known to exist, disclosure only enhances the quest for truth; it takes no direct toll on that inquiry' (United States v. Bagley, 473 U.S. [667,] 692-693 [(1985)] [Marshall, J., dissenting])."
And in Ex parte Frazier, 562 So.2d 560, 565 (Ala. 1989), the Alabama Supreme Court, quoting Estes v. Texas, 381 U.S. 532, 540 (1965), noted:
"`Court proceedings are held for the solemn purpose of endeavoring to ascertain *Page 1199 the truth which is the sine qua non of a fair trial. Over the centuries Anglo-American courts have devised careful safeguards by rule and otherwise to protect and facilitate the performance of this high function.'"
Legislatures and courts have only recently begun to fully appreciate and address the need for specific procedures and standards for resolving postconviction requests for DNA testing. Across the country, existing procedures for a postconviction challenge to a conviction and sentence have generally not kept pace with the technological advances in DNA testing. There is, indeed, little guiding precedent. See, e.g.,Development in the Law — Confronting the New Challenges ofScientific Evidence, 108 Harv. L.Rev. 1481 (1995); Jennifer Boemer, Inthe Interest of Justice: Granting Post-Conviction Deoxyribonucleic Acid(DNA) Testing to Inmates, 27 Wm. Mitchell L.Rev. 1971 (2001); Karen Christian, "And the DNA Shall Set You Free": Issues SurroundingPostconviction DNA Evidence and the Pursuit of Innocence, 62 Ohio St. L. J. 1195 (2001).
The lack of existing procedures and precedent are no more apparent than here in Alabama. Judge Baschab correctly recognizes this and then strongly urges the Legislature to pass statutes and/or the Alabama Supreme Court to establish rules that allow for, and set parameters for, postconviction DNA testing. I join Judge Baschab in that respect, and I call upon either or both of those bodies to study this important issue carefully and to implement procedures governing postconviction DNA testing in Alabama. I believe that the failure to implement such procedures may raise serious due-process issues in certain cases, including capital-murder cases in which the death penalty has been imposed, and may necessitate federal court intervention in certain cases.
However, I must respectfully disagree with the proposition that this Court has the authority to create a new procedure for trial courts to follow in considering requests for postconviction DNA testing — a procedure that anticipates, but is totally independent of, a postconviction challenge pursuant to Rule 32, Ala.R.Crim.P.2 Although blind adherence to procedural rules should not necessarily take precedence over the overarching search for the truth, the inescapable fact remains that this Court is bound by the opinions and rules promulgated by the Alabama Supreme Court. See § 12-3-16, Ala. Code 1975; McGriff v.State, [Ms. CR-97-0179, September 29, 2000] ___ So.2d ___ (Ala.Crim.App. 2000).
Rule 32.4, Ala.R.Crim.P., provides:
"A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule. Proceedings under this rule shall be governed by the Rules of Criminal Procedure, except that the trial court in its sole discretion may allow the taking of depositions for discovery or for use at trial."
By its plain language, Rule 32 displaces all postconviction petitions seeking relief from a conviction or a sentence. A proceeding under Rule 32 is the sole posttrial remedy available in Alabama, with the exception of posttrial motions under Rule 24 and appeal, neither of which is an option for Dowdell. See Cayson v. State, 778 So.2d 261 (Ala.Crim.App. 2000). Only the Legislature and the Alabama Supreme Court, *Page 1200 by virtue of its constitutional rule-making power, see Ala. Const. of 1901, Amend. No. 328, § 6.11, have the authority to change the procedure and requirements of Rule 32.3
Because the statute of limitations set out in Rule 32.2(c) bars Dowdell from possibly challenging his conviction on the constitutional grounds set out in Rule 32.1(a), the only ground upon which Dowdell could conceivably seek relief, and upon which he has sought relief in this case, is set out in Rule 32.1(e), which provides:
"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 proceedings 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."
(Emphasis added.) As the emphasized portion of the rule indicates, this ground, properly stated, requires a petitioner to allege the existence of facts (supported by evidence newly discovered) that meet the five conditions enumerated therein. In addition, the six-month limitations period provided in Rule 32.2(c), contemplates that a petition alleging a Rule 32.1(e) ground will be filed "within six (6) months after the discovery of the newly discovered material facts." Therefore, the only way Dowdell can mount a Rule 32 challenge to his conviction, based on the alleged existence of newly discovered exculpatory DNA evidence, would be to first obtain postconviction discovery of that evidence, i.e., DNA test results.
The dispositive case in Alabama concerning postconviction discovery isEx parte Land, 775 So.2d 847 (Ala. 2000). In that case, the Alabama Supreme Court ordered certain discovery in connection with the petitioner's claim of ineffective assistance of counsel, filed pursuant to Rule 32. Referring to this Court's opinion in Ex parte Land, 775 So.2d 840 (Ala.Crim.App. 1998), the Court stated, in pertinent part:
775 So.2d at 852-53 (footnote omitted)."We agree with the Court of Criminal Appeals that `good cause' is the appropriate standard by which to judge postconviction discovery motions. In fact, other courts have adopted a similar `good-cause' or `good-reason' standard for the postconviction discovery process. See [State v. Marshall, 148 N.J. 89, 690 A.2d 1, cert denied, 522 U.S. 850 (1997)]; State *Page 1201 v. Lewis, 656 So.2d 1248 (Fla. 1994); People ex rel. Daley v. Fitzgerald, 123 Ill.2d 175, 121 Ill. Dec. 937, 526 N.E.2d 131 (1988). As noted by the Illinois Supreme Court, the good-cause standard guards against potential abuse of the postconviction discovery process. See Fitzgerald, supra, 123 Ill.2d at 183, 121 Ill. Dec. 937, 526 N.E.2d at 135. We also agree that New Jersey's Marshall case provides a good working framework for reviewing discovery motions and orders in capital cases. In addition, we are bound by our own rule that `an evidentiary hearing must be held on a [petition for postconviction relief] which is meritorious on its face, i.e., one which contains matters and allegations (such as ineffective assistance of counsel) which, if true, entitle the petitioner to relief.' Ex parte Boatwright, 471 So.2d 1257, 1258 (Ala. 1985).
"We emphasize that this holding — that postconviction discovery motions are to be judged by a good-cause standard — does not automatically allow discovery under Rule 32, Ala.R.Crim.P., and that it does not expand the discovery procedures within Rule 32.4. Accord Lewis, supra, 656 So.2d at 1250, wherein the Florida Supreme Court stated that the good-cause standard did not affect Florida's rules relating to postconviction procedure, which are similar to ours. By adopting this standard, we are only recognizing that a trial court, upon a petitioner's showing of good cause, may exercise its inherent authority to order discovery in a proceeding for postconviction relief. In addition, we caution that postconviction discovery does not provide a petitioner with a right to `fish' through official files and that it `is not a device for investigating possible claims, but a means of vindicating actual claims.' People v. Gonzalez, 51 Cal.3d 1179, 1260, 800 P.2d 1159, 1206, 275 Cal.Rptr. 729, 776 (1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 85 (1991). Instead, in order to obtain discovery, a petitioner must allege facts that, if proved, would entitle him to relief. Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir. 1986) (`a hearing [on a habeas corpus petition] is not required unless the petitioner alleges facts which, if proved, would entitle him to federal habeas relief'), cert. denied, 482 U.S. 918, 919, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987). Furthermore, a petitioner seeking postconviction discovery also must meet the requirements of Rule 32.6(b), Ala.R.Crim.P., which states:
"`The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.'
"That having been said, we must determine whether Land presented the trial court with good cause for ordering the requested discovery. To do that, we must examine Land's basis for the relief requested in his postconviction petition and determine whether his claims are facially meritorious. Only after making that examination and determination can we determine whether Land has shown good cause."
It is apparent from a reading of both this Court's opinion and the Supreme Court's opinion in Ex parte Land, that the Supreme Court recognized that in the absence of authorization in the form of a court rule, a statute, or constitutional mandate, trial courts have the inherent, but limited, authority to order postconviction *Page 1202 discovery where justice so requires. However, it is also apparent from a reading of the Supreme Court's opinion in Ex parte Land that the Supreme Court has restricted postconviction discovery in Alabama to those situations where the discovery of evidence is necessary to support a facially valid Rule 32 ground. Stated differently, a petitioner must file a Rule 32 petition and clearly and specifically allege facts that, if proved, would entitle him or her to the relief sought before he or she can seek discovery in support of the ground alleged. The Supreme Court stated that a petitioner is not entitled to "fish" for evidence for the purpose of investigating a possible claim, and it cautioned that postconviction discovery was to be available only as a means of "vindicating actual claims." 775 So.2d at 852.
Therefore, under existing Alabama caselaw and court rules, Dowdell is subject to a true "catch 22." Contrary to the majority's conclusion that Dowdell's claim could have been considered had it been raised within a reasonable time after the Alabama Supreme Court's opinion in Ex partePerry, 586 So.2d 242 (Ala. 1991), I believe that no matter when Dowdell filed his claim, he could not have possibly stated a proper claim under Rule 32.1(e), because he had no DNA test results upon which to base such a claim for relief. Yet he also could not discover the evidence he needs, i.e., the DNA test results, because without those results he could not state a facially valid claim under Rule 32.1(e). In short, there is no mechanism available for Dowdell to challenge his conviction based upon allegedly exculpatory DNA test results.
I recognize that some courts have fashioned various theories for granting requests for DNA testing, e.g., treating such a request as being made pursuant to a possible motion for a new trial based on newly discovered evidence or pursuant to a possible habeas petition; and treating such a request as a motion to enforce an obligation under Bradyv. Maryland, 373 U.S. 83 (1963), to reveal exculpatory evidence to the defense. See Development in the Law — Confronting the NewChallenges of Scientific Evidence, supra; Boemer, supra; Christian, supra; see also Mebane v. State, 21 Kan. App. 2d 533, 902 P.2d 494 (1995), and the cases cited therein. However, in light of the plain language of Rule 32 and the Alabama Supreme Court's holding in Ex parteLand, I cannot conclude that this Court can create a new procedure for addressing requests for DNA testing based upon these theories. This issue must, in my view, be left to the Legislature and/or the Alabama Supreme Court.
The real issues for those bodies, as I see them, concern (1) the exact nature of the proceeding that should be created (a proceeding commenced by the filing of a separate petition for postconviction discovery, whereby the inherent authority of a trial court to order such discovery would be expanded, or a discovery proceeding authorized by an amendment to Rule 32); (2) the criteria that would be used in determining whether a "prima facie" showing has been made, or whether "good cause" has been shown, to warrant DNA testing; and (3) whether the appeal process should be expedited in some manner.
The procedure advocated by Judge Baschab could, and, in my opinion, would, greatly impact the criminal justice system in Alabama, especially in the area of capital litigation. The importance of the concept of finality in criminal cases cannot be overstated, and the need to conserve judicial resources by not opening the floodgates to meritless and costly claims is also an important consideration. The people of Alabama have a vested interest in the swift and efficient administration of criminal *Page 1203 justice. Of course, the primary, and ultimately the overriding, concern for society as a whole, and for appellate judges in particular, is that justice actually be achieved in every case. In Ex parte Frazier, supra, the Supreme Court, in adopting new standards by which to judge new-trial motions alleging false testimony, aptly stated:
562 So.2d at 572."We must not let our awareness of the criminal milieu in which Frazier moved stain the `processes of law.' Frazier is entitled to a fair trial. Justice Cardozo wrote in The Nature of the Judicial Process (1921) at 35, that `the sordid controversies of the litigants are the stuff out of which great and shining truths will ultimately be shaped.' The one `great and shining truth' that has been shaped from this sordid controversy is that the courts of this state shall strive always to ensure fair treatment to all those who, because of their alleged criminal acts, stand to lose their lives or liberty, regardless of who they may be and regardless of what their alleged offenses may be. Our Constitutions require, and we will insist on, no less."
Therefore, I believe that procedures and standards must be adopted in this area of the law — procedures and standards that strike the proper balance between these competing concerns. Unfortunately, I cannot find any sound legal basis for concluding that this Court has the authority to create those new procedures and standards.
Because I would affirm the summary denial of the appellant's petition, although not for the reasons stated by the majority, I concur in the result only.
"The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application."