Ex parte Reginald Renard Macon PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

• Court: Supreme Court of Alabama
• Decided: March 10, 2023
• Docket: 2023-0026
• Status: Published

Opinion

Rel: March 10, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA OCTOBER TERM, 2022-2023

_________________________

SC-2023-0026 _________________________

Ex parte Reginald Renard Macon

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

(In re: Reginald Renard Macon

v.

State of Alabama)

(Houston Circuit Court: CC-93-1043.61; Court of Criminal Appeals: CR-21-0474)

MITCHELL, Justice. SC-2023-0026

WRIT DENIED. NO OPINION.

Parker, C.J., and Shaw, Bryan, and Sellers, JJ., concur.

Mitchell, J., concurs specially, with opinion.

2 SC-2023-0026

MITCHELL, Justice (concurring specially).

I concur in the decision to deny Reginald Renard Macon's petition

for a writ of certiorari because every theory asserted in his petition is

either meritless, unpreserved, noncompliant with Rule 39(a), Ala. R. App.

P., or some combination of the three. I write specially to address a

separate question implicated by the decision below.

By way of background, Macon is a serial felon who was most

recently indicted for first-degree rape and first-degree theft of property.

Macon opted not to go to trial on these charges and instead pleaded guilty

to first-degree sexual abuse and first-degree theft of property. Following

those pleas, he was sentenced to concurrent terms of life imprisonment

under the Habitual Felony Offender Act ("the HFOA"), § 13A-5-9, Ala.

Code 1975. Macon did not file a direct appeal challenging his convictions

or sentences, but he has since filed three petitions for collateral

postconviction relief under Rule 32, Ala. R. Crim. P., including the

petition at issue here (his most recent).

One of the many claims that Macon made in his most recent Rule

32 petition was that his sexual-abuse sentence violated double-jeopardy

principles. That was so, Macon argued, because the original trial court

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had illegitimately enhanced that sentence under the HFOA. The

Houston Circuit Court rejected that claim -- along with all the other

claims raised in Macon's Rule 32 petition -- and Macon did not mention

it again when he appealed the circuit court's judgment. Instead, he chose

to focus his appeal on his other claims.

In affirming the judgment of the circuit court, the Court of Criminal

Appeals correctly determined that, by abandoning his double-jeopardy

claim, Macon had failed to preserve it for appellate review. Macon v.

State (No. CR-21-0474, Dec. 9, 2022), ___ So. 3d ___ (Ala. Crim. App.

2022) (table). Nonetheless, "out of an abundance of caution," the Court

of Criminal Appeals proceeded to explain in its unpublished

memorandum why that claim failed on the merits. It felt the need to do

so, it said, because there is some authority suggesting that the type of

double-jeopardy violation alleged by Macon is jurisdictional in nature

and "thus cannot be waived." In other words, the Court of Criminal

Appeals seems to have assumed that if jurisdictional defects in a sentence

are nonwaivable on direct review, they must be nonwaivable on collateral

review (such as in a Rule 32 proceeding) as well.

4 SC-2023-0026

In my view, that assumption is unwarranted. The general rule is

that once a judgment becomes final on direct review it is entitled to full

res judicata effect, even if it rested on a jurisdictional defect. See 20

Charles Alan Wright & Mary Kay Kane, Federal Practice & Procedure:

Federal Practice Deskbook § 17 (2d ed. 2011) (explaining the general rule

that "a party who does not actually contest [a court's] jurisdiction will be

bound by [its] judgment"); Restatement (Second) of Judgments § 12 (Am.

L. Inst. 1982) (noting that, unless a recognized exception provides

otherwise, "[w]hen a court has rendered a judgment in a contested action,

the judgment precludes the parties from litigating the question of the

court's subject matter jurisdiction in subsequent litigation"). While there

are certain narrow exceptions to the finality-of-judgment rule, those

exceptions are just that -- narrow. Rule 32.1 provides one such exception

when it permits a petitioner to collaterally challenge his final conviction

or sentence by arguing that the issuing court lacked jurisdiction. But, so

far as I can tell, nothing in Rule 32 (or any of our other procedural rules)

requires a court to entertain collateral attacks on a final judgment based

on potential defects in the original proceedings -- even jurisdictional ones

-- that the petitioner has not adequately presented and preserved in the

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collateral challenge. See Lee v. State, 44 So. 3d 1145, 1149-50 (Ala. Crim.

App. 2009) (noting that the rule that appellate courts "will not search out

errors which have not been properly preserved" applies in Rule 32

proceedings); Ala. R. Crim. P. 32.10(a) (stating that existing rules of

appellate procedure govern Rule 32 petitions). Accordingly, the Court of

Criminal Appeals was under no obligation to entertain the merits (or lack

thereof) of Macon's unpreserved double-jeopardy claim.

With that clarification in mind, I concur in the decision to deny the

writ.