author: MOORE, Judge.

text:
    M.G. v. J.T.
    2110761.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2012.
    William C. Porter, Cullman, for appellant.
    Annette Irons-Parker of Parker & Parker, P.C., Cullman, for appellee.
    Andria Richter, Cullman, guardian ad litem, for appellee.
   MOORE, Judge.

This is the second time these parties have been before this court. In M.G. v. J.T., 90 So.3d 762 (Ala.Civ.App.2012), M.G. (“the mother”) appealed from a judgment of the Cullman Juvenile Court (“the juvenile court”) declaring B.L.T. (“the child”) dependent and awarding custody of the child to J.T., the child’s stepmother (“the stepmother”). We concluded that the juvenile court’s judgment had not been entered in accordance with due process and, thus, that the judgment was void. M.G., 90 So.3d at 766. Therefore, on February 24, 2012, we dismissed the mother’s appeal with instructions to the juvenile court to set aside its void judgment. Id.

On February 27, 2012, the juvenile court scheduled the cause for a hearing to be held on March 1, 2012. This court’s certificate of judgment was issued on March 15, 2012. On March 29, 2012, after conducting the hearing on March 1, the juvenile court entered a judgment, again finding the child dependent and awarding custody of the child to the stepmother. The mother again appeals.

We first address the issue whether the juvenile court had subject-matter jurisdiction to conduct the hearing and enter its judgment. Ex parte Alabama Dep’t of Human Res., 999 So.2d 891, 895 (Ala.2008) (quoting Ex parte Smith, 438 So.2d 766, 768 (Ala.1983)) (“ ‘[I]t is the duty of an appellate court to consider lack of subject-matter jurisdiction ex mero motu.’ ”).

“ ‘It is well settled that “[o]nce an appeal is taken, the trial court loses jurisdiction to act except in matters entirely collateral to the appeal.” ’ Portis v. Alabama State Tenure Comm’n, 863 So.2d 1125, 1126 (Ala.Civ.App.2003) (quoting Ward v. Ullery, 412 So.2d 796, 797 (Ala.Civ.App.1982)). Further,
‘“Alabama law is clear that “[j]uris-diction of a case can be in only one court at a time.” Ex parte State ex rel. O.E.G., 770 So.2d 1087, 1089 (Ala.2000). Furthermore, “while an appeal is pending, the trial court ‘can do nothing in respect to any matter or question which is involved in the appeal, and which may be adjudged by the appellate court.’ ” Reynolds v. Colonial Bank, 874 So.2d 497, 503 (Ala.2003) (quoting Foster v. Greer & Sons, Inc., 446 So.2d 605, 608 (Ala.1984)).’
“Johnson v. Willis, 893 So.2d 1138, 1141 (Ala.2004).
‘We also note that, until an appellate court enters its certificate of judgment, its decision is not yet final and its jurisdiction over a case is not terminated. See Rule 41(a), Ala. R.App. P. (an appellate court’s ‘certificate of judgment ... shall issue 18 days after the entry of judgment unless the time is shortened or enlarged by order’); see also Portis, 863 So.2d at 1126; and Veteto v. Yocum, 792 So.2d 1117, 1119 (Ala.Civ.App.2001).”

Landry v. Landry, 91 So.3d 88, 89-90 (Ala.Civ.App.2012).

In the present case, the juvenile court held a hearing on March 1, 2012, which was before this court issued its certificate of judgment on March 15, 2012. Therefore, at the time of the hearing, this court’s jurisdiction over the case had not terminated, and the juvenile court had not reacquired jurisdiction over the case. Landry, 91 So.3d at 90. A judgment cannot be entered upon evidence obtained at a hearing that was held at a time when the trial court did not have subject-matter jurisdiction. See, e.g., Gray v. State, 658 So.2d 510, 511 (Ala.Crim.App.1994) (holding that, unless parties would stipulate to the facts, a new hearing must be held when the previous hearing had been held at a time when the trial court lacked subject-matter jurisdiction).

Based on the foregoing, we conclude that the juvenile court’s March 29, 2012, judgment is void for lack of subject-matter jurisdiction. We, therefore, dismiss the appeal, albeit with instructions to the juvenile court to set aside its void judgment. Like the Court of Criminal Appeals in Gray, we instruct the juvenile court that, before entering a new judgment, it must conduct a new hearing unless the parties enter into a stipulation of the facts. 658 So.2d at 511.

APPEAL DISMISSED WITH INSTRUCTIONS.

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

THOMAS, J., recuses herself.


source: Caselaw Access Project

author: WINDOM, Judge.

license: Public Domain

text:
    Mark Allen JENKINS v. STATE of Alabama.
    CR-08-0490.
    Court of Criminal Appeals of Alabama.
    Aug. 26, 2011.

      Ty Alper and Katherine R. Weisburd, Berkeley, California; and Joseph T. Flood, Fairfax, Virginia, for appellant.
    Troy King, atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.
   On Application for Rehearing

WINDOM, Judge.

This Court’s opinion of December 17, 2010, is withdrawn, and the following opinion is substituted therefor.

Mark Allen Jenkins appeals the circuit court’s summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., in which he attacked his March 1991 convictions for two counts of murder made capital because the murder was committed during the course of a robbery and a kidnapping, see §§ 13A-5-40(a)(2) and 13A-5-40(a)(l), Ala. Code 1975. By a vote of 10-2, the jury recommended that Jenkins be sentenced to death. The circuit court accepted the jury’s recommendation and sentenced Jenkins to death for his capital-murder convictions.

On February 28, 1992, this Court affirmed Jenkins’s convictions and sentence. See Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992). On May 28, 1993, the Alabama Supreme Court affirmed Jenkins’s capital-murder convictions and death sentence. See Ex parte Jenkins, 627 So.2d 1054 (Ala.1993). On March 28, 1994, the United States Supreme Court denied Jenkins’s petition for a writ of certiorari. See Jenkins v. Alabama, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994).

On May 26,1995, Jenkins, through counsel, filed his first Rule 32 petition in the St. Clair Circuit Court in which he raised numerous claims for relief. On November 26, 1996, Jenkins filed an amendment to his Rule 32 petition in which he alleged, among other things, that he was entitled to a new trial because Juror L.V. failed to disclose during voir dire that her nephew and his -wife had been murdered. (1st R. 32 C. at 257-59.) On December 10, 1996, the circuit court conducted the first day of an evidentiary hearing on Jenkins’s amended Rule 32 petition and postponed the remainder of the hearing until a later date. On January 18, 1997, after the first day of the evidentiary hearing but before the two final days of the hearing, the State filed a response to Jenkins’s amended Rule 32 petition in which it asserted, among other things, that Jenkins’s juror-misconduct claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on direct appeal. Thereafter, on January 20 and 21, 1997, the circuit court conducted the remainder of the evidentiary hearing, during which Jenkins presented the testimony of one of his two trial attorneys.

On December 31, 1997, the circuit court issued a detailed order denying relief on the claims contained in Jenkins’s Rule 32 petition. (1st R. 32 C. at 267-346.) In its order, the circuit court determined, in relevant part, that Jenkins’s claim contending that Juror L.V.’s failure to disclose during voir dire that her nephew and his wife had been murdered was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because this claim could have been, but was not, raised at trial or on direct appeal. (1st R. 32 C. at 275, 282.)

On February 27, 2004, this Court affirmed the circuit court’s denial of Jenkins’s Rule 32 petition. See Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). Specifically, this Court held that Jenkins’s juror-misconduct claim was barred pursuant to Rule 32.2(c), Ala. R.Crim. P., because it was raised in an untimely amendment to the original Rule 32 petition and did not relate back to any claim raised in the original petition. Id. at 120-21. On April 8, 2005, the Alabama Supreme Court reversed this Court’s holding that Jenkins’s juror-misconduct claim was time-barred and remanded the cause to this Court for further proceedings. See Ex parte Jenkins, 972 So.2d 159 (Ala.2005).

On November 23, 2005, this Court again affirmed the circuit court’s order denying relief on Jenkins’s claim relating to juror misconduct. See Jenkins v. State, 972 So.2d 165 (Ala.Crim.App.2005). In affirming the circuit court’s decision, this Court noted that Jenkins failed to present any evidence during the evidentiary hearing indicating that his juror-misconduct claim was not known and could not have been discovered in time to raise it at trial or on appeal. Id. at 167-68. Specifically, this Court explained:

“Jenkins submitted no evidence indicating why this claim was raised in the Rule 32 petition and not in earlier proceedings. Jenkins’s attorney offered no explanation at the Rule 82 hearing. The only reference in the record concerning the lateness of raising this claim is the following statement contained in a response filed by Jenkins: ‘After filing his petition for postconviction relief but pri- or to the evidentiary hearing in this case, Mr. Jenkins obtained new evidence suggesting that [L.V.] had a close relative who had been murdered.’ (Supplemental record, vol. Ill, p. 402.)”

Id. at 167. After noting that Jenkins failed to present any evidence indicating whether trial counsel knew of and thus could have raised the juror-misconduct claim earlier, this Court, applying the Alabama Supreme Court’s holding in Ex parte Pierce, 851 So.2d 606 (Ala.2000), held that the claim was procedurally barred because it could have been, but was not, raised at trial or on appeal. Jenkins v. State, 972 So.2d at 168. See also Ex parte Pierce, 851 So.2d at 614 (explaining that “Rule[s] 32.2(a)(3) and (5) would preclude [a juror-misconduct] claim if it could have been raised at trial or on appeal ... [and to overcome the procedural bars contained in Rule 32.2(a), Ala. R.Crim. P., the petitioner must] show that his claim could not have been raised at trial or on direct appeal”). On May 18, 2007, the Alabama Supreme Court entered an order denying Jenkins’s petition for a writ of certiorari.

On May 15, 2008, Jenkins filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama. After Jenkins filed his federal habeas corpus petition, the Alabama Supreme Court issued its decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). In Burgess, the Alabama Supreme Court reviewed this Court’s affirmance of the circuit court’s summary dismissal of Burgess’s Rule 32 petition in which he raised a juror-misconduct claim. Id. at 751. Specifically, the Alabama Supreme Court reviewed whether this Court had properly held that Burgess’s juror-misconduct claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on appeal. Id. See Rule 32.2(a)(3) and (a)(5) (“A petitioner will not be given relief under [Rule 32] based upon any ground: ... 3) [w]hieh could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or ... 5) [w]hich could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).”).

In Ex parte Burgess, the Alabama Supreme Court applied this Court’s decision in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), and its own decision in Ex parte Pierce, 851 So.2d 606 (Ala.2000), and reaffirmed the principle established by those cases that a Rule 32 petitioner raising juror-misconduct claim relating to a juror’s failure to disclose information during voir dire may overcome the procedural bars contained in Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., if that petitioner “establishe[s] that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” Ex parte Burgess, 21 So.3d at 751 (quoting Ex parte Pierce, 851 So.2d at 616 (emphasis added)). The Alabama Supreme Court noted that Burgess had alleged in his Rule 32 petition that the juror-misconduct claim was not discovered until it was too late to raise the claim at trial or on appeal. Id. The Court further noted that it was unreasonable to require trial or appellate counsel to blindly investigate possible juror-misconduct claims and that Burgess had alleged in his petition that he had no reason to suspect any juror misconduct. Id. at 754-55. Because Burgess had alleged facts indicating that his counsel was unaware of the juror-misconduct claim until it was too late to raise the claim at trial or on appeal and had alleged facts indicating that “nothing occurred during the trial or appears in the record that could have alerted him or his counsel to the [alleged juror misconduct],” the Alabama Supreme Court held that this Court erroneously determined, at the pleading stage, that Burgess’s juror-misconduct claim was proeedurally barred pursuant to Rule 32.2(a)(3) and (a)(5). Id. at 751-55. Therefore, the Alabama Supreme Court reversed the summary dismissal of Burgess’s Rule 32 petition. Id. at 755.

On October 2, 2008, Jenkins moved the federal district court to stay his habeas proceedings to allow him to file another Rule 32 petition reasserting his juror-misconduct claim. Specifically, Jenkins sought a stay in federal court to allow him to pursue his juror-misconduct claim pursuant to the Alabama Supreme Court’s decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). On November 12, 2008, the federal district court granted Jenkins’s motion to stay his habeas proceedings.

On October 1, 2008, Jenkins filed a second Rule 32 petition in which he re-alleged that Juror L.V.’s failure to disclose during voir dire that her nephew and his wife had been murdered 20 years before Jenkins’s trial violated his right to a fair trial. In his Rule 32 petition, Jenkins “incorporate[d] ... the record of the [previous] evidentiary hearing conducted” on his juror-misconduct claim. (2d R. 32 C. at 6.) On October 31, 2008, the State filed an answer and motion to dismiss in which it asserted that Jenkins’s petition was procedurally barred pursuant to Rules 32.2(b) and 32.2(c), Ala. R.Crim. P., and argued, based on the previous Rule 32 hearing, that Jenkins’s juror-misconduct claim was without merit. The State further asserted that because Jenkins’s claim was procedurally barred and without merit, it should be dismissed pursuant to Rule 32.7(d), Ala. R.Crim. P. On November 25, 2008, the circuit court issued a detailed order dismissing Jenkins’s petition as proeedurally barred and denying relief on the merits.

I.

Initially, “[w]hen reviewing a circuit court’s denial of a Rule 32 petition, this Court applies an abuse-of-discretion standard.” Shouldis v. State, 38 So.3d 753, 761 (Ala.Crim.App.2008) (quoting Whitman v. State, 903 So.2d 152, 154 (Ala.Crim.App.2004), citing in turn McGahee v. State, 885 So.2d 191 (Ala.Crim.App.2003)). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court’s review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001) (citing State v. Hill, 690 So.2d 1201, 1203 (Ala.1996)). Further, “[t]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.” Burgess v. State, 962 So.2d 272, 277 (Ala.Crim.App.2005) (internal citations and quotations omitted). Finally, “[t]he procedural bars of Rule 32[.2, Ala. R.Crim. P.,] apply with equal force to all cases, including those in which the death penalty has been imposed.” Id. (internal citations and quotations omitted).

n.

On appeal, Jenkins first alleges that the circuit court violated his right to due process for three reasons. Specifically, Jenkins asserts that the circuit court violated his right to due process by: A) failing to make independent findings of fact and conclusions of law; B) denying him an opportunity to file a response to the State’s answer and motion to dismiss; and C) failing to timely serve him with the order disposing of the Rule 32 petition. For the reasons that follow, these arguments are without merit.

A.

Jenkins initially argues the circuit court violated his right to due process when the it adopted the State’s proposed order. (Jenkins’s brief, at 15-21.) Specifically, Jenkins alleges that the circuit court failed to make independent findings of fact and conclusions of law; therefore, this cause should be remanded for further proceedings. To support his argument that the circuit court failed to make independent findings of fact and conclusions of law, Jenkins asserts that the circuit court could not have reviewed the trial record, the record of the previous Rule 32 proceeding, the pleadings in the second Rule 32 proceedings, and the 24-page proposed order in the short time between receiving the State’s proposed order and adopting it. According to Jenkins, the circuit court “could not have complied with its obligation to independently evaluate” his claim because “it is likely that the circuit court signed the 24-page order within hours of seeing it for the first time.” (Jenkins’s brief, at 9, 16). As discussed below, Jenkins’s argument is based on an assumption that is unsupported by the record and, thus, is without merit.

Initially, Jenkins argues that the circuit court erroneously adopted the State’s proposed order denying relief. Specifically, he argues that the circuit court’s adoption of the State’s proposed order violated his right to “independent findings of fact and conclusions of law.” (Jenkins’s brief, at 15.)

“Alabama Courts have repeatedly upheld the circuit court’s adoption of proposed orders drafted by the State in postconviction cases. For example, in Hyde v. State, 950 So.2d 344 (Ala.Crim.App.2006), we stated:
“ ‘Hyde contends that the circuit court erred in adopting the State’s proposed order. Specifically, he argues that there are numerous factual and legal errors in the order that indicate that the order does not represent the court’s own independent judgment, but shows a wholesale adoption of the State’s proposed order without consideration of his claims. However, this Court has repeatedly upheld the practice of adopting the State’s proposed order when denying a Rule 32 petition for postconviction relief. See, e.g., Coral v. State, 900 So.2d 1274, 1288 (Ala.Crim.App.2004), overruled on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala.2005), and the cases cited therein. “Alabama courts have consistently held that even when a trial court adopts verbatim a party’s proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.” McGahee v. State, 885 So.2d 191, 229-30 (Ala.Crim.App.2003).’
950 So.2d at 371.
“Thus, even when a circuit court adopts a proposed order in its entirety, the petitioner must show that the findings of fact and conclusions of law in that order are ‘clearly erroneous’ before an appellate court will reverse the order solely on the basis that the order was submitted by the State.”

Hodges v. State, [Ms. CR-04-1226, March 23, 2007] — So.3d -, - (Ala.Crim.App.2007).

In Ex parte Ingram, 51 So.3d 1119, 1122 (Ala.2010), the Alabama Supreme Court reaffirmed “the general rule ... that, where a trial court does in fact adopt the [prevailing party’s] proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court.” The Court went on to state that “[i]n this unusual case, [it could not] conclude that the above-stated ‘general rule’ was applicable” because the adopted order contained indisputably false statements. Id. at 1123-24. Specifically, the judge who signed the State’s proposed order stated that he had presided over Ingram’s trial and had personal knowledge of the trial proceedings when, in fact, another judge had presided over the trial. Id. The Supreme Court then held that “the patently erroneous nature of the statements regarding the trial judge’s ‘personal knowledge’ and observations of Ingram’s capital-murder trial undermines any confidence that the trial court’s findings of fact and conclusions of law are the product of the trial judge’s independent judgment and that the ... order reflects the findings and conclusions of that judge.” Id. at 1125 (emphasis in the original). Because the order established that the conclusions were not those of the judge, the Supreme Court reversed the dismissal of Ingram’s Rule 32 petition. Id.

Later, in Ex parte Scott, [Ms. 1091275, March 18, 2011] — So.3d -, - (Ala.2011), the Alabama Supreme Court held that the circuit court erred in adopting verbatim as its order the State’s answer to a Rule 32 petition. After reaffirming its earlier decision in Ex parte Ingram, the Court held that it constitutes error for a circuit court to adopt the prevailing party’s answer because an answer “is infected with ... adversarial zeal [and] because an answer is a pleading that never is prepared with the pretense of impartiality.” Id. Because a party’s answer “is infected with ... adversarial zeal,” the “verbatim adoption of the State’s answer to [a] Rule 32 petition as its order, by its nature, violates [the Court’s] holding in Ex parte Ingram [that the circuit court’s order must] reflect the independent and impartial findings and conclusions of the trial court.” Id.

Unlike Ex parte Ingram, the circuit court’s order in this case does not contain statements that are “patently erroneous.” 51 So.3d at 1125. Also, unlike Ex parte Scott, the circuit court adopted the State’s proposed order as opposed to an answer “infected with ... adversarial zeal.” — So.3d at-. Further, the circuit court’s order purports to constitute the circuit court’s independent judgment. For instance, in its order denying relief, the circuit court stated that it had “thoroughly reviewed and considered” Jenkins’s current Rule 32 petition, the State’s answer, the evidence presented at the evi-dentiary hearing on Jenkins’s first Rule 32 petition, and the record on direct appeal, prior to dismissing the current petition. Based on these facts, this Court holds that “the general rule ... that, where a trial court does in fact adopt the [prevailing party’s] proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court,” Ex parte Ingram, 51 So.3d at 1122, applies, and no error resulted from the circuit court’s adoption of the State’s proposed order.

Moreover, even if the circuit court erred in adopting the State’s proposed order, that error, if any, would be harmless beyond a reasonable doubt. See Rule 45, Ala. R.App. P. As discussed in more detail below, Jenkins’s Rule 32 petition was time-barred on its face, and, as a matter of law, each of Jenkins’s arguments regarding why he believes the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not apply to his Rule 32 petition lacks merit. See Rule 45, Ala. R.Crim. P.; of. Peraita v. State, 897 So.2d 1161, 1185 (Ala.Crim.App.2003) (holding that the circuit court’s erroneous determination was harmless when there was a valid alternative reason for the circuit court’s action); United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir.2009) (holding that a trial court’s error is harmless when it had a valid alternative holding); Shedden v. Principi, 381 F.3d 1163, 1168 (Fed.Cir.2004) (same); Barton v. Gammell, 143 Ga.App. 291, 238 S.E.2d 445, 448 (1977) (holding that an erroneous finding is harmless when the trial court’s decision is supported by other grounds). Because Jenkins’s Rule 32 petition was on its face time-barred pursuant to Rule 32.2(c), Ala. R.Crim. P., error, if any, in the adoption of the State’s proposed order was harmless. Therefore, Jenkins is not entitled to any relief on this issue.

Next, Jenkins’s argument that the circuit court did not make independent findings of facts or conclusions of law because it lacked sufficient time to review all the records, pleadings, and the 24-page proposed order in the short time between receiving the State’s proposed order and adopting the order is based on the assumption that the circuit court was idle during the 55 days between when Jenkins filed his Rule 32 petition and when the circuit court dismissed the petition. Jenkins filed his Rule 32 petition on October 1, 2008. The State filed its answer and motion to dismiss Jenkins’s petition on October 31, 2008. The circuit court signed its order denying relief on November 25, 2008. Almost two months elapsed between the filing of Jenkins’s petition and the circuit court’s issuing its order. Contrary to Jenkins’s assertion, 55 days provided plenty of time for the circuit court to independently review the records and the pleadings filed by the parties.

In an alternative argument, Jenkins asserts that the circuit court “reached clearly erroneous conclusions”; therefore, it erred in adopting the State’s proposed order. (Jenkins’s brief, at 20.) Specifically, Jenkins asserts that the circuit court’s order erroneously stated:

“[T]his Court credits [L.V.’s] testimony that she did not have a close relationship with her sister, much less with her sister’s son, at the time of her nephew’s death and finds that it is reasonable to believe that she would not have mentioned his death when she was asked the very specific question of whether any of her ‘close relatives’ had been the victim of a crime. (R. 286; R2.10.)”

(2d R. 32 C. 72.) According to Jenkins, this statement was clearly erroneous because Juror L.V. stated that she was close to her sister.

The circuit court’s finding appears to have been based on the following exchange between Jenkins’s counsel and Juror L.V. during Jenkins’s first Rule 32 hearing:

“Q: Was [your nephew] murdered in March of 1971?
“A: Yeah, I guess. It has been a long time. I’m not sure.
“Q: Are you close to your sister, Pauline?
“A: Yes, I’m close to her. She and one more is all I have.
“Q: Does she live close to you?
“A: About three miles, I guess.
“Q: Do you have an opportunity to see her fairly often?
“A: I see her three times a week. She is old and I help take care of her.
“Q: At the time her son was murdered, did you have a lot of contact with her?
“A: No, because I worked then. We didn’t see as much of each other as we do now.
“Q: You were still close?
“A: Yes, of course.”

(1st R. 32 R. at 10-11.) Later, L.V. testified that when the venire was asked whether anyone’s close family member had been the victim of a crime, L.V. stated that her nephew “was the furtherest thing from [her] mind.” (1st R. 32 R. at 10.)

This Court has explained:

“ ‘ “ ‘[A] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).... If the [circuit] court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982).” [Anderson v. City of Bessemer City, N.C.], 470 U.S. [564] at 573-74, 105 S.Ct. [1504] at 1511 [(1985)].’ ”

Barbour v. State, 903 So.2d 858, 862 (Ala.Crim.App.2004) (quoting Morrison v. State, 551 So.2d 435, 436-37 (Ala.Crim.App.1989)).

Here, there are “two permissible views of the evidence....” Id. Although L.V. testified that she was close to her sister, she also testified that at the time her nephew was murdered, she did not have much contact with her sister. L.V. also indicated that she did not remember when her nephew was murdered. Further, L.V. testified that during voir dire, her nephew’s murder “was the furtherest thing from [her] mind.” (1st R. 32 R. 10.) Based on the testimony indicating that L.V. did not have much contact with her sister at the time of her nephew’s murder, did not remember when her nephew was murdered, and did not think of her nephew’s murder during voir dire, this Court cannot say that the circuit court’s conclusion that L.V. was not close to her sister and nephew at the time of the nephew’s murder was clearly erroneous.

Moreover, even if this Court were to determine that the circuit court’s isolated statement was inaccurate, this determination would not render the circuit court’s ultimate holdings clearly erroneous. See State v. Smith, 85 So.3d 1063, 1071 (Ala.Crim.App.2010) (holding that the circuit court’s erroneous determination that trial counsel was unqualified as a matter of law to represent a capital defendant did not render the circuit court’s order granting Rule 32 relief clearly erroneous because the circuit court made extensive findings that were supported by the evidence and relied on numerous grounds in granting the petitioner relief). Here, the circuit court relied on multiple grounds to deny Jenkins’s request for relief and made extensive findings of fact that were supported by the evidence presented at trial and at the Rule 32 hearing. More importantly, as stated above and discussed in more detail below, Jenkins’s Rule 32 petition was time-barred on its face, and, as a matter of law, each of Jenkins’s arguments regarding why he believes the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not apply to his Rule 32 petition lacks merit. See Rule 45, Ala. R.Crim. P.; cf. Peraita v. State, 897 So.2d 1161, 1185 (Ala.Crim.App.2003) (holding that the circuit court’s erroneous determination was harmless when there was a valid alternative reason for the circuit court’s action); United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir.2009) (holding that a trial court’s error is harmless when it had a valid alternative holding); Shedden v. Principi, 381 F.3d 1163, 1168 (Fed.Cir.2004) (same); Barton v. Gammell, 143 Ga.App. 291, 238 S.E.2d 445, 448 (1977) (holding that an erroneous finding is harmless when the trial court’s decision is supported by other grounds). Therefore, this Court cannot say that the circuit court’s isolated statement rendered the order clearly erroneous.

Because the circuit court had sufficient time to review all the records and pleadings pertaining to Jenkins’s claim and because Jenkins has not shown that the circuit court’s order denying relief was clearly erroneous, he has not established that the circuit court erred in adopting the State’s proposed order. Therefore, Jenkins is not entitled to any relief based on this issue.

B.

Jenkins next contends the circuit court erred in denying relief on his petition before considering his reply to the State’s answer and motion to dismiss. The State argues that Rule 32 does not provide for the filing of a reply to the State’s response and that, even if it did, any error was harmless. This Court agrees with the State.

Rule 32.6(a), Ala. R.Crim. P., provides that “[a] proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner’s attorney, with the clerk of the court.” Rule 32.6(b), Ala. R.Crim. P., requires a petitioner to disclose the full factual basis establishing entitlement to relief, including any facts necessary to overcome the procedural bars contained in Rule 32.2, Ala. R.Crim. P. See Ex parte Ward, 46 So.3d 888, 897 (Ala.2007) (“[W]hen a Rule 32 petition is' time-barred on its face, the petition must establish entitlement to the remedy afforded by the doctrine of equitable tolling. A petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed .... ”). Rule 32.7(a), Ala. R.Crim. P., allows the State 30 days to file a response to the Rule 32 petition. There is, however, no provision in Rule 32 for the petitioner — who, pursuant to Rule 32.6(b), Ala. R.Crim. P., should have included the full factual basis for his request for relief and each of his legal assertions in his Rule 32 petition — to file a reply to the State’s response.

Furthermore, there is no provision in Rule 32 that requires the circuit court to await a response from the State before dismissing a Rule 32 petition. Instead, as Alabama courts have repeatedly held, “Rule 32.7(d), Ala. R.Crim. P., allows the trial court to summarily dismiss a Rule 32 petition that, on its face, is precluded or fails to state a claim, and [the Alabama Supreme Court has] held that the trial court may properly summarily dismiss such a petition without waiting for a response to the petition from the State.” Ex parte Ward, 46 So.3d at 897 (citing Bishop v. State, 608 So.2d 345, 347-48 (Ala.1992) (“Where a simple reading of a petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition without requiring a response from the district attorney.”)).

Recognizing these principles, this Court, in Beekworth v. State, [Ms. CR-07-0051, May 1, 2009] — So.3d -, - (Ala.Crim.App.2009), rejected Jenkins’s argument. Three days after the State filed its response to Beckworth’s Rule 32 petition and without allowing Beekworth to file a reply, the circuit court summarily dismissed Beckworth’s petition. Id. On appeal, Beekworth argued, among other things, “that the trial court abused its discretion when it dismissed the petition only three days after the State filed its answer....” Id. This Court disagreed and held that because “the trial court may properly summarily dismiss a Rule 32 petition even before it receives from the State a response to the petition ...[,] [n]o error occurred as a result of the trial court’s entry of the judgment within days of its receipt of the State’s response.” Id. See Bishop v. State, 608 So.2d at 347-48 (holding that where a simple reading of a petition for postconviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court may summarily dismiss that petition without requiring a response from the district attorney). Similarly, this Court holds that the circuit court did not err in dismissing Jenkins’s petition prior to receiving a reply to the State’s answer and motion to dismiss.

Moreover, even if Jenkins did have a right to file a reply to the State’s answer and motion to dismiss, any error the circuit court committed in signing the order dismissing the petition without the reply was harmless. See Rule 45, Ala. R.Crim. P. As discussed below, Jenkins filed his reply after the circuit court signed the order dismissing the petition but well before the circuit court entered its order. Therefore, Jenkins had the opportunity to plead his arguments before the circuit court and to preserve his arguments for appellate review. More importantly, this Court has thoroughly reviewed the arguments contained in Jenkins’s reply and, as will be discussed later in this opinion, is convinced that those arguments would not have altered the outcome of his Rule 32 proceedings. See Rule 45, Ala. R.App. P.; Ex parte Williams, 987 So.2d 1122, 1126 (Ala.2007) (“[B]efore the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”) (citations and quotations omitted). Therefore, Jenkins is not entitled to any relief based on this issue.

C.

Jenkins next argues that his right to due process was violated because he did not receive notice that the circuit court had signed the November 25, 2008, order dismissing the petition until December 23, 2008. According to Jenkins, the circuit court retained jurisdiction to entertain a motion to reconsider for only 30 days after signing the order dismissing the petition. He then argues that because he did not receive notice of the dismissal until 28 days after the circuit court signed the order, he had only two days to file his motion to reconsider and the circuit court had only two days to consider that motion. Jenkins then argues that because those remaining two days included the Christmas holiday, his motion did not receive consideration in violation of his right to due process. This Court disagrees.

The circuit court rendered its judgment dismissing Jenkins’s Rule 32 petition on November 25, 2008, when it signed the State’s proposed order. See Rule 58(a), Ala. R. Civ. P. (“A Judge may render an order or judgment ... by execution a separate written document....”). According to Jenkins, he received notice of the circuit court’s action on December 23, 2008. The circuit court, however, did not enter its judgment for finality and timing purposes until January 2, 2009, when the order was entered into the State Judicial

Information System. See Rule 58(c), Ala. R. Civ. P. (“An order or a judgment shall be deemed ‘entered’ within the meaning of these Rules and the Rules of Appellate Procedure as of the actual date of the input of the order or judgment into the State Judicial Information System.”); see also Ex parte Wright, 860 So.2d 1253,1254 (Ala.2002) (Rule 58(c), Ala. R. Civ. P., governs when an order dismissing a Rule 32 petition is entered for timing purposes.). Accordingly, Jenkins received notice of the circuit court’s order dismissing his Rule 32 petition 10 days before that order was entered and became final. Under these facts, this Court holds that Jenkins received timely notice of the entry of the circuit court’s judgment.

Moreover, even if Jenkins did receive notice in an untimely manner, this Court would not remand this cause for further proceedings because any error was harmless. Rule 45, Ala. R.App. P. Here, Jenkins filed his motion to reconsider within 30 days of the circuit court signing the order dismissing his Rule 32 petition, and he filed a timely notice of appeal. Thus, he did not lose the opportunity to preserve any arguments. Further, this Court has thoroughly reviewed the assertions contained in all the pleadings Jenkins filed after the circuit court signed its order dismissing the petition. After thoroughly reviewing all of Jenkins’s pleadings, this Court is convinced that none of the arguments contained in those pleadings would have altered the outcome of his Rule 32 proceedings. See Ex parte Williams, 987 So.2d at 1126 (“[BJefore the reviewing court can affirm a judgment based upon the ‘harmless error’ rule, that court must find conclusively that the trial court’s error did not affect the outcome of the trial or otherwise prejudice a substantial right of the defendant.”) (citations and quotations omitted).

Because Jenkins timely filed his motion to reconsider and notice of appeal and because none of the arguments contained in the pleadings filed after the circuit court signed its order dismissing the Rule 32 petition would have altered the outcome of the proceedings, any delay in notifying Jenkins of the order was harmless. Rule 45, Ala. R.App. P. Therefore, Jenkins is not entitled to any relief based on this issue.

III.

Jenkins next argues that the circuit court erroneously determined that his Rule 32 petition was time-barred pursuant to Rule 32.2(c), Ala. R.Crim. P. First, Jenkins argues that the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not apply to a successive petition filed pursuant to Rule 32.2(b)(2), Ala. R.Crim. P., based on a “new ground” for relief or based on a new rule of law. Jenkins then asserts that the Alabama Supreme Court “changed the law in Alabama with respect to when juror misconduct claims may be raised” when it decided Ex parte Burgess, 21 So.3d 746 (Ala.2008). (Jenkins’s brief, at 34.) According to Jenkins, because he based his juror-misconduct claim on the “new ground” for Rule 32 relief that the Supreme Court established in Ex parte Burgess and because he filed his second Rule 32 petition within six months of the Supreme Court’s release of its opinion in Ex parte Burgess, the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does not bar relief. Alternatively, Jenkins argues that even if the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., does apply, he was entitled to equitable tolling because his juror-misconduct claim was based on the “new law” established in Ex parte Burgess. Again, Jenkins asserts that in Ex parte Burgess, the Alabama Supreme Court created a new law governing when juror-misconduct claims may be asserted and that this new law was not created until after the time limitation on his Rule 32 petition had expired; therefore, he is entitled to equitable tolling. This Court disagrees.

Each of Jenkins’s arguments regarding why his petition is not barred by the time limitation contained in Rule 32.2(c), Ala. R.Crim. P., is based on the premise that the Alabama Supreme Court established a “new law” or a “new ground” for Rule 32 relief in Ex parte Burgess. Contrary to Jenkins’s assertions, the Alabama Supreme Court did not establish a new law in Ex parte Burgess; instead, it held that this Court had misapplied existing law. In Ex parte Burgess, the Alabama Supreme Court granted certiorari review “to determine whether the decision [of this Court, holding that Burgess’s juror-misconduct claim was procedurally barred pursuant to Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P.,J conflicted] with Ex parte Pierce, 851 So.2d 606 (Ala.2000), Ex parte Dobyne, 805 So.2d 763 (Ala.2001), and DeBruce v. State, 890 So.2d 1068 (Ala.Crim.App.2003).” Ex parte Burgess, 21 So.3d at 750. In Ex parte Pierce, the Alabama Supreme Court established that a juror-misconduct claim could be raised as a constitutional claim pursuant to Rule 32.1(a), Ada. R.Crim. P., and would not be procedurally barred pursuant to Rule 32.2(a)(3) and (a)(5), if the petitioner proved by a preponderance of the evidence “that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.” 851 So.2d at 616-17. The Supreme Court’s holding in Pierce was reaffirmed in Ex parte Dobyne, 805 So.2d 763, 768 (Ala.2001), and DeBruce v. State, 890 So.2d 1068 (Ala.Crim.App.2003).

In Ex parte Burgess, the Alabama Supreme Court reviewed this Court’s affirmance of the summary dismissal of Burgess’s Rule 32 petition in which Burgess alleged that jurors had failed to disclose information during voir dire. Although Burgess had alleged that the juror-misconduct claim was not known to him and “that he could not have reasonably discovered the alleged juror misconduct in time to raise the claims in a motion or a new trial or on appeal,” this Court held that his claims were procedurally barred because they could have been, but were not, raised at trial and on direct appeal. Ex parte Burgess, 21 So.3d at 754 (emphasis in original). The Alabama Supreme Court reversed this Court’s decision, holding that this Court had erroneously applied the standard established in Ex parte Pierce, 851 So.2d 606, and Ex parte Dobyne, 805 So.2d 763, regarding what a Rule 32 petitioner must establish to overcome the procedural bars contained in Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P. Specifically, the Alabama Supreme Court, relying on Ex parte Pierce, 851 So.2d 606, held that a Rule 32 petitioner can overcome the procedural bars contained in Rule 32.2(a)(3) and (a)(5), Ala. R.Crim. P., if that petitioner shows that he was unaware of and “that he could not have reasonably discovered the alleged juror misconduct in time to raise the claims in a motion or a new trial or on appeal.” Ex parte Burgess, 21 So.3d at 754. See also Ex parte Pierce, 851 So.2d at 616 (“Pierce’s [juror-misconduct] claim was cognizable as long as he established that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.”). Accordingly, the Supreme Court did not, as Jenkins argues, establish a new rule of law or a new ground for Rule 32 relief when it decided Ex parte Burgess. Instead, it determined that this Court had erroneously applied the standard established in Ex parte Pierce, 851 So.2d at 616.

Because the Alabama Supreme Court did not establish a new law or a new ground for Rule 82 relief in Ex parte Burgess, Jenkins’s assertion that the release of that case exempted his juror-misconduct claim from the application of the time limitation contained in Rule 82.2(c), Aa. R.Crim. P., is without merit. Likewise, because the Aabama Supreme Court did not establish a new law or a new ground for Rule 32 relief in Ex parte Burgess, Jenkins is not entitled to equitable tolling based on the release of that case. See Fitts v. Eberlin, 626 F.Supp.2d 724, 733 (N.D.Ohio 2009) (“Given that no new rule exists that applies to [the petitioner’s] case, [his] plea for equitable tolling ... must fail.”). Therefore, unless Jenkins filed his Rule 32 petition before the time limitation expired, this circuit correctly dismissed the petition pursuant to Rule 32.7(d), Aa. R.Crim. P. See Wood v. State, 891 So.2d 398, 420 (Aa.Crim.App.2003) (holding that juror-misconduct claims are nonjurisdictional); Bowen v. State, 899 So.2d 310, 312 (Aa.Crim.App.2004) (holding that nonjurisdictional, constitutional claims are subject to the procedural bars set forth in Rule 32, Aa. R.Crim. P.); Tucker v. State, 956 So.2d 1170, 1171 (Aa.Crim.App.2006) (holding that nonjurisdictional claims are subject to the time limitation contained in Rule 32.2(c), Aa. R.Crim. P.).

Rule 32.2(c), Aa. R.Crim. P., provides: “Subject to the further provisions hereinafter set out in this section, the 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 one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Aa.R.App. P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses; provided, however, that the time for filing a petition under Rule 32.1(f) to seek an out-of-time appeal from the dismissal or denial of a petition previously filed under any provision of Rule 32.1 shall be six (6) months from the date the petitioner discovers the dismissal or denial, irrespective of the one-year deadlines specified in the preceding subparts (1) and (2) of this sentence; and provided further that the immediately preceding proviso shall not extend either of those one-year deadlines as they may apply to the previously filed petition. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable one-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later; provided, however, that the one-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1,1987.”

The Aabama Supreme Court affirmed this Court’s judgment affirming Jenkins’s capital-murder convictions and sentences of death on May 28, 1993, Ex parte Jenkins, 627 So.2d 1054, and this Court issued its certificate of judgment on October 28, 1993. Jenkins did not file his current Rule 32 petition until October 1, 2008, well after the time limitation contained in Rule 32.2(c), Aa. R.Crim. P., had expired. Because Jenkins filed his Rule 32 petition after the time limitation had expired, the circuit court correctly dismissed it pursuant to Rule 32.7(d), Ala. R.Crim. P.

For the foregoing reasons, the judgment of the circuit court is affirmed.

APPLICATION FOR REHEARING OVERRULED; OPINION OF DECEMBER 17, 2010, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

WELCH, P.J., and KELLUM, BURKE, and JOINER, JJ., concur.

      . This Court’s decision on direct appeal provides a detailed account of the facts of Jenkins's crime. Jenkins, 627 So.2d at 1037-40. Therefore, this Court will not repeat those facts, many of which are not relevant to the issues before this Court.

      . This Court has taken judicial notice of all of its records relating to Jenkins’s previous proceedings, including, but not limited to, the transcripts of Jenkins’s direct appeal and the transcripts of Jenkins’s first Rule 32 proceedings. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).

      . The juror-misconduct claim raised in Jenkins’s first amended Rule 32 petition is the only claim relevant to his appeal from the dismissal of his successive Rule 32 petition.

      . In his brief to this Court, Jenkins asserts that: "The State filed no response to Mr. Jenkins’[s] amended petition prior to the conclusion of the evidentiary hearing. After the hearing concluded, the State argued for the first time that Mr. Jenkins'[s] juror misconduct claim should be precluded under Rule 32.2(a) because it could have been raised at trial or on direct appeal." (Jenkins’s brief, at 5.) Contrary to Jenkins’s assertion to this Court, the State filed its response to his amended Rule 32 petition and asserted the procedural bars prior to the conclusion of the evidentiary hearing.

      . At trial, Jenkins was represented by Douglas Scofield and Stan Downey. (R. 270-449.) Although Jenkins was represented by two attorneys at trial, Scofield was the only attorney to testify at the Rule 32 hearing. (1st R. 32 R. at 278-420.)

      . In Ex parte Scott, the Court emphasized that it did “not even have the benefit of an order proposed or ‘prepared’ by a party; rather the order [was] a judicial incorporation of a party’s pleading_” Ex parte Scott, - So.3d at-.

      . In his brief to this Court, Jenkins asserts that he was prejudiced by the circuit court’s decision to sign the order dismissing his petition before receiving his reply because ‘‘[a]t the time the circuit court signed the State’s order, the only pleading it had received from Mr. Jenkins was his successive petition, which contained only factual allegations and no legal arguments." (Jenkins's brief, at 25) (emphasis added). Jenkins’s assertion is belied by the record. (2d R. 32 C. 3-17.)

      . The amendment to Rule 58(c), Ala. R. Civ. P., providing that a judgment is entered for finality purposes when the order is entered into the State Judicial Information System became effective on September 19, 2006. The Committee Comments to the 2006 amendment to Rule 58(c), Ala. R. Civ. P., explain:
      "Rule 58(c) is amended to provide for an unambiguous and universally available record of the entry of judgment. Upon occasion, the loose-leaf docket sheets or case action summary sheets have been misplaced after a judgment has been entered, or the circuit clerk failed to mail notice of the entry of judgment, such that the time for filing a notice of appeal began to run without the losing party's having effective notice of the entry of judgment or the deadline for filing a notice of appeal_ [Under Rule 58(c), Ala. R. Civ. P., as amended,] [t]he electronic records input into the [State Judicial Information System] are available both in the clerks’ offices and through remote access over the Internet. Thus, under the amended rule, an attorney or a party will have virtually instant access to the information that judgment has been entered.”

      . On January 9, 2009, the circuit court issued an order holding that it lacked jurisdiction to rule on Jenkins’s motion to reconsider and his motion to amend his petition. Jenkins does not argue on appeal that the circuit court’s rulings were erroneous; therefore, these issues are not before this Court. See Pardue v. Potter, 632 So.2d 470, 473 (Ala.1994) ("Issues not argued in the appellant's brief are waived.”). However, even if these issues were properly before this Court, Jenkins invited any error in the circuit court's ruling by erroneously asserting in his motion to reconsider that the circuit court would lose jurisdiction on December 25, 2008. See Ex parte Worley, 102 So.3d 428, 434 (Ala.2010).

      . This Court notes that Jenkins, during his first Rule 32 proceeding, failed to prove by a preponderance of the evidence "that the information [relating to his juror-misconduct claim] was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal,” Ex parte Pierce, 851 So.2d at 616-17, because Jenkins failed to elicit any testimony from trial counsel indicating that counsel was unaware of the claim. Because Jenkins failed to meet his burden to establish that the claim was unknown, this Court correctly applied Ex parte Pierce, 851 So.2d at 616-17, and held that the claim was procedurally barred because it could have been, but was not, raised at trial or on direct appeal. Jenkins v. State, 972 So.2d at 168.

      . Jenkins cites King v. State, 689 So.2d 931 (Ala.Crim.App.1997), Rice v. State, 682 So.2d 485 (Ala.Crim.App.1996), and Mitchell v. State, 547 So.2d 1194 (Ala.Crim.App.1989), in support of his proposition that Rule 32 claims based on newly decided cases are not subject to the time limitation contained in Rule 32.2(c), Ala. R.Crim. P. Unlike Jenkins’s non-jurisdictional claim, the petitioners in each of these cases raised jurisdictional claims that, by their nature, are not subject to the time limitation contained in Rule 32.2(c), Ala. R.Crim. P. Therefore, these cases do not support his argument.

        . Because this Court has affirmed the dismissal of Jenkins’s petition based on Rule 32.2(c), Ala. R.Crim. P., it will not discuss the circuit court's alternative reasons for dismissing the petition.


author: BOLIN, Justice.

text:
    Ex parte Mark Allen JENKINS. (In re Mark Allen Jenkins v. State of Alabama).
    1101410.
    Supreme Court of Alabama.
    Sept. 21, 2012.

      Ty Alper and Katherine R. Weisburd, University of California, Berkeley School of Law, Berkeley, California; and Joseph T. Flood of Sheldon & Flood, P.L.C., Fair-fax, Virginia, for petitioner.
    Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Henry M. Johnson, asst. atty. gen., for respondent.

       Justice Main and Justice Wise were members of the Court of Criminal Appeals when that court considered this case.

   BOLIN, Justice.

Mark Allen Jenkins petitioned this Court for a writ of certiorari, raising a number of grounds for certiorari review. This Court granted the petition for the limited purpose of determining whether the Court of Criminal Appeals’ decision affirming the trial court’s verbatim adoption of the State’s proposed order dismissing Jenkins’s petition for postconviction relief filed pursuant to Rule 82, Ala. R.Crim. P., conflicts with this Court’s decisions in Ex parte Ingram, 51 So.3d 1119 (Ala.2010), and Ex parte Scott, [Ms. 1091275, March 18, 2011] — So.Sd - (Ala.2011).

Facts and Procedural History

Mark Allen Jenkins was convicted in March 1991 of two counts of murder made capital because the murder was committed during the course of a robbery and during the course of a kidnapping, see §§ 13A-5-40(a)(2) and 13A-5-40(a)(l), Ala.Code 1975. By a vote of 10-2, the jury recommended that Jenkins be sentenced to death. The trial court accepted the jury’s recommendation and sentenced Jenkins to death for the capital-murder convictions. Judge H.E. Holladay presided over the trial.

On February 28, 1992, the Court of Criminal Appeals affirmed Jenkins’s convictions and sentences. See Jenkins v. State, 627 So.2d 1034 (Ala.Crim.App.1992). On May 28, 1993, this Court affirmed the Court of Criminal Appeals’ decision. See Ex parte Jenkins, 627 So.2d 1054 (Ala.1993). On March 28, 1994, the United States Supreme Court denied Jenkins’s petition for a writ of certiorari. See Jenkins v. Alabama, 511 U.S. 1012, 114 S.Ct. 1388, 128 L.Ed.2d 63 (1994).

On May 26, 1995, Jenkins filed his first Rule 32 petition in the St. Clair Circuit Court, in which he asserted numerous claims for relief. On November 26, 1996, Jenkins filed an amendment to his Rule 32 petition in which he alleged, among other things, that he was entitled to a new trial because a juror, L.V., failed to disclose during voir dire that her nephew and his wife had been murder victims. The Rule 32 postconviction proceeding was assigned to St. Clair Circuit Judge William Hereford, who conducted the first day of a three-day evidentiary hearing on December 10, 1996. On January 18, 1997, after the first day of the evidentiary hearing but before the final day of the hearing, the State filed a response to Jenkins’s amended Rule 32 petition in which it asserted, among other things, that Jenkins’s juror-misconduct claim was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because it could have been, but was not, raised at trial or on direct appeal. The trial court conducted the remainder of the evidentiary hearing on January 20 and 21,1997.

On December 31, 1997, the trial court entered an order denying relief on the claims contained in Jenkins’s Rule 32 petition. The trial court concluded, in part, that Jenkins’s claim that Juror L.V.’s failure to disclose during voir dire that her nephew and his wife had been murdered was procedurally barred pursuant to Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., because this claim could have been, but was not, raised at trial or on direct appeal.

On February 27, 2004, the Court of Criminal Appeals affirmed the trial court’s denial of Jenkins’s Rule 32 petition, holding that Jenkins’s juror-misconduct claim was barred pursuant to Rule 32.2(c), Ala. R.Crim. P., because it was raised in an untimely amendment to the original Rule 32 petition and did not relate back to the original petition. See Jenkins v. State, 972 So.2d 111 (Ala.Crim.App.2004). On April 8, 2005, this Court reversed the Court of Criminal Appeals’ judgment “insofar as [that court] held that Jenkins’s claim of juror misconduct, presented for the first time in his amended petition, could not be considered because it did not relate back to his original petition.” Ex parte Jenkins, 972 So.2d 159, 165 (Ala.2005). This Court remanded the case for further proceedings.

On November 23, 2005, the Court of Criminal Appeals again affirmed the trial court’s order denying relief on Jenkins’s juror-misconduct claim. Jenkins v. State, 972 So.2d 165 (Ala.Crim.App.2005). In affirming the trial court’s decision, that court noted that Jenkins had failed to present any evidence during the evidentiary hearing indicating that his juror-misconduct claim was not known and could not have been discovered in time to raise it at trial or on appeal. 972 So.2d at 167-68. On May 18, 2007, this Court denied Jenkins’s petition for a writ of certiorari.

On May 15, 2008, Jenkins filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Alabama. The federal habeas corpus petition included Jenkins’s juror-misconduct claim.

Subsequent to Jenkins’s filing his habe-as corpus petition, this Court issued its decision in Ex parte Burgess, 21 So.3d 746 (Ala.2008). In Ex parte Burgess, this Court reviewed the Court of Criminal Appeals’ affirmance of the trial court’s summary dismissal of Burgess’s Rule 32 petition, in which he raised a juror-misconduct claim, on the basis that that claim could have been, but was not, raised at trial or on appeal. See Rule 32.2(a)(3) and (a)(5). In reversing the Court of Criminal Appeals’ judgment, this Court reaffirmed the principle established in State v. Freeman, 605 So.2d 1258 (Ala.Crim.App.1992), and Ex parte Pierce, 851 So.2d 606 (Ala.2000), that a Rule 32 petitioner raising juror-misconduct claim relating to a juror’s failure to disclose information during voir dire may overcome the procedural bars of Rules 32.2(a)(3) and (a)(5), Ala. R.Crim. P., if that petitioner “ ‘established] that the information was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.’ ” Ex parte Burgess, 21 So.3d at 751 (quoting Ex parte Pierce, 851 So.2d at 616 (emphasis added)) On October 1, 2008, Jenkins filed a second Rule 32 petition based on the authority of Ex parte Burgess in which he realleged his juror-misconduct claim. In his Rule 32 petition, Jenkins “incorporate[d] ... the record of the [previous] evidentiary hearing conducted” on his juror-misconduct claim. Jenkins’s second Rule 32 petition was assigned to yet another circuit judge — Judge James E. Hill, Jr.

On October 31, 2008, the State answered the petition and moved to dismiss it, arguing that the petition was procedurally barred pursuant to Rules 32.2(b) and 32.2(c), Ala. R.Crim. P., and that, based on the previous Rule 32 hearing, Jenkins’s juror-misconduct claim was without merit. The State further argued that because Jenkins’s claim was procedurally barred and was without merit, it should be dismissed pursuant to Rule 32.7(d), Ala. R.Crim. P.

On November 5, 2008, Jenkins moved the trial court for time to file a reply to the State’s answer and motion to dismiss. On November 21, 2008, before the trial court had ruled on Jenkins’s request, the State submitted to the trial court a proposed order denying Jenkins’s second Rule 32 petition. The State’s proposed order contained numerous citations to the record on direct appeal from Jenkins’s trial in 1991, as well as to the record on appeal following Jenkins’s initial postconviction proceedings in 1996 and 1997. The proposed order purported to make factual and credibility findings regarding witnesses whom Judge Hill had never seen testify and also contained a detailed analysis of the voir dire proceedings at trial.

Jenkins states that the proposed order was filed by the State using first-class mail on Friday, November 21, 2008. Thus, he surmises that, given that the courthouse would be closed for the weekend, the earliest the trial court or a member of its staff could have seen the proposed order would have been the following Monday, November 24, 2008. Jenkins notes that the State’s proposed order was mailed to the St. Clair Circuit Court clerk’s office in Ashville. However, he states that “upon information and belief’ Judge Hill was not sitting in Ashville on Monday, November 24, 2008, but was instead sitting in Pell City on that date. On November 25, 2008, Judge Hill was sitting in the Ashville courthouse; the trial court signed the State’s proposed order that day, denying all requested relief without making any changes to it.

Jenkins states that the trial court’s records are kept in the circuit court clerk’s office and that a log is kept of when court files are “checked out” by court personnel. Jenkins contends that before signing the proposed order, neither Judge Hill nor any member of his staff “checked out” from the clerk’s office his court files containing the transcripts and pleadings from his trial and the first Rule 32 proceedings.

On December 3, 2008 — after signing the proposed order dismissing Jenkins’s second Rule 32 petition — the trial court granted Jenkins’s previously filed motion for time to reply to the State’s answer and motion to dismiss. Although the trial court signed the proposed order denying Jenkins’s second Rule 32 petition on November 25, 2008, Jenkins did not receive notice of the trial court’s action until December 23, 2008. In the meantime, Jenkins, on December 15, 2008, filed his response to the State’s answer and motion to dismiss, a motion for leave to file an amended petition for relief from his convictions and sentences, and a motion to set a briefing schedule. Jenkins filed an “Emergency Motion for Reconsideration” once he received notice that the trial court had signed the State’s proposed order denying his Rule 32 petition. Jenkins urged the trial court in his motion for reconsideration to act quickly, believing that the trial court would lose jurisdiction of his case on December 25, 2008. However, it appears that those assertions were erroneous because, although the trial court signed the order adopting the State’s proposed order on November 25, 2008, it did not actually enter that order until January 2, 2009. Jenkins filed a notice of appeal to the Court of Criminal Appeals on December 29, 2008. On January 9, 2009, the trial court entered an order stating that it had lost jurisdiction of the case to the Court of Criminal Appeals.

The Court of Criminal Appeals affirmed the trial court’s dismissal of Jenkins’s Rule 32 petition. Jenkins v. State 105 So.3d 1234 (Ala.Crim.App.2011). This petition for a writ of certiorari followed.

Standard of Review

“‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).

Discussion

Jenkins contends that the Court of Criminal Appeals mischaracterized and misapplied the holdings in Ex parte Ingram, supra, and Ex parte Scott, supra, to the unique facts of this case. In Ex parte Ingram, the defendant, who was convicted in 1995 of capital murder and was sentenced to death, filed a Rule 32, Ala. R.Crim. P., petition on February 1, 2002, seeking relief from his conviction and sentence. In March 2002, the State filed a response to the defendant’s petition and a motion for a partial summary dismissal. In April 2002, the defendant filed a response to the State’s motion for a partial summary dismissal and an amended Rule 32 petition, in which he also requested full discovery and funds to allow him to hire certain experts. In July 2002, the State responded to the defendant’s motions and amended Rule 32 petition.

On May 20, 2004, the State filed a proposed order denying the defendant’s Rule 32 petition. The defendant did not respond to the State’s proposed order. Judge Jerry L. Fielding, who had presided over the defendant’s capital-murder trial in 1995, retired while the Rule 32 proceedings were pending, and the case was assigned to Judge William E. Hollingsworth.

On June 8, 2004, Judge Hollingsworth entered an order denying the defendant’s Rule 32 petition. The order adopted verbatim the proposed order filed by the State on May 20, 2004, the only modifications being that the heading stated “Order” rather than “Proposed Order” and the signature page contained Judge Holl-ingsworth’s signature rather than Judge Fielding’s signature. Judge Hollingsworth did not hold a hearing or a status conference on the defendant’s petition and pending motions and did not explicitly address the defendant’s pending motions in the June 8 order. On July 21, 2004, Judge Hollingsworth entered an order purporting to rescind the June 8 order. On September 7, 2004, the Court of Criminal Appeals issued an order directing the trial court to set aside its July 21 order, holding that the trial court had lost jurisdiction to modify its June 8 order 30 days after entering it.

The Court of Criminal Appeals affirmed the summary denial of the defendant’s Rule 32 petition. See Ingram v. State, 51 So.3d 1094 (Ala.Crim.App.2006). The defendant petitioned this Court for a writ of certiorari, which this Court granted to determine whether the June 8 order represented the actual findings and conclusion of the trial court.

In reversing the Court of Criminal Appeals’ affirmance of the trial court’s order denying the defendant’s Rule 32 petition, this Court stated:

“It is axiomatic that an order granting or denying relief under Rule 82, Ala. R.Crim. P., must be an order of the trial court. It must be a manifestation of the findings and conclusions of the court. Although no authority other than the creation of the judicial branch and the delegation of judicial authority to the circuit courts of this State in the Alabama Constitution, Ala. Const.1901, Amend. No. 328, § 6.01(a) (now § 139(a), Ala. Const. 1901 (Off.Re-eomp.)), is necessary to support this proposition, the provisions of Rules 32.1 through 32.10, Ala. R.Crim. P., also provide support. Among other things, Rule 32.7(d) states that ‘[if] the court determines ’ certain matters to be true, it may summarily dismiss the petition; Rule 32.9(c) provides that ‘[i]f the court finds in favor of the petitioner, it shall enter an appropriate order’; Rule 32.9(d) states that ‘[t]he court shall make specific findings of fact relating to each material issue of fact presented’; and Rule 32.10 refers to ‘the decision of a circuit court.’
“... [T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court. In Dohyne v. State, 805 So.2d 733, 741 (Ala.Crim.App.2000), the Court of Criminal Appeals stated:
“ ‘ “ ‘While the practice of adopting the state’s proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ ” ’
805 So.2d at 741 (quoting other cases; emphasis added). In McGahee v. State, 885 So.2d 191, 229-30 (Ala.Crim.App.2003), the Court of Criminal Appeals stated that ‘even when a trial court adopts verbatim a party’s proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.’ Cf. United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (expressing disapproval of the ‘mechanical’ adoption of findings of fact prepared by a party, but stating that such findings are formally those of the trial judge and ‘are not to be rejected out-of-hand’).
“In this unusual case, however, we cannot conclude that the above-stated ‘general rule’ is applicable. That is, despite the fact that the trial judge signed the June 8 order, we cannot conclude that the findings and conclusions in that order are in fact those of the court itself.
“The June 8 order begins as follows:
“ ‘Having considered the first amended Rule 32 petition presented to the Court, the State of Alabama’s amended answer, the State of Alabama’s motions to dismiss, the evidence presented at trial, and the events within the personal knowledge of the Court, the Court makes the following findings of fact and conclusions of law and summarily dismisses and denies the claims in Ingram’s first amended Rule 32 petition.’
“(Emphasis added.) After a rendition of the facts of the case, the June 8 order states:
“ ‘The findings by the Court of Criminal Appeals [in Ingram v. State, 779 So.2d 1225 (Ala.Crim.App.1999),] guide the Court in its resolution of the issues presented in the first amended Rule 32 petition. The Court is also relying on the trial transcript where necessary to support the Court’s findings and the resolution of this Rule 32 petition. In addition, this Court presided over Ingram’s capital murder trial and personally observed the performance of both lawyers throughout Ingram’s trial and sentencing.’
“(Emphasis added.)
“The obvious problem with the emphasized portions of the above-quoted passages from the June 8 order is that Judge Fielding, not Judge Hollings-worth, presided over Ingram’s capital-murder trial. Although minor factual errors understandably find their way into orders drafted by trial courts in handling busy dockets, an error as to whether the judge in fact sat as the trial judge in a capital-murder trial and is basing his decision on personal observations and personal knowledge acquired by doing so is the most material and obvious of errors.
“Ingram contends that the nature of these errors indicates that the trial judge did not even read the proposed order submitted by the State before signing and issuing it as the order of the court and that the June 8 order cannot represent the actual and independent findings of the trial court. Ingram further contends that Judge Hollings-worth’s attempt in the July 21 order to rescind the June 8 order and to recuse himself from the case confirms that Judge Hollingsworth recognized that the June 8 order was fatally flawed.
“Despite the erroneous statements in the June 8 order, the Court of Criminal Appeals affirmed the judgment of the trial court in summarily dismissing Ingram’s Rule 32 petition based upon the standard of review an appellate court employs in evaluating findings of fact and conclusions of law even when those findings and conclusions are adopted verbatim from the prevailing party. The Court of Criminal Appeals quoted the following passage from Dobyne:
“ ““ “While the practice of adopting the state’s proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous .... ”
“ ‘ “ ‘Bell v. State, 593 So.2d 123, 126 (Ala.Crim.App.1991), cert. denied, 593 So.2d 123 (Ala.), cert. denied, 504 U.S. 991, 112 S.Ct. 2981, 119 L.Ed.2d 599 (1992).’ ” ’
“... The Court of Criminal Appeals concluded that ‘the facts and conclusions of law in the circuit court’s [June 8] order were not clearly erroneous’ and that therefore the trial court’s judgment was due to be affirmed. Ingram II [Ingram v. State, 51 So.3d 1094, 1100 (Ala.Crim.App.2006) ].
“The State echoes the reasoning of the Court of Criminal Appeals, noting that Ingram failed to explain specifically how any of the trial court’s findings and conclusions were clearly erroneous. The State further contends that the erroneous statements in the trial court’s June 8 order are harmless because, it argues, the specific findings in the order as to Ingram’s claims were not based upon the trial judge’s personal knowledge. ‘Instead, Judge Hollingsworth denied the individual claims in the Rule 32 petition based on his finding that the claims were not sufficiently pleaded, were not supported by the trial transcript, were decided adversely to Ingram on direct appeal, or were procedurally defaulted.’
“Though the ‘clearly erroneous’ standard of review may apply in cases in which the trial court has adopted, as its own, the proposed order of the prevailing party, the analysis proffered by both the Court of Criminal Appeals and the State fails to admit of the most fundamental and the first requirement: that the order and the findings and conclusions in such order are in fact those of the trial court.
“Accordingly, appellate courts must be careful to evaluate a claim that a prepared order drafted by the prevailing party and adopted by the trial court verbatim does not reflect the independent and impartial findings and conclusions of the trial court. In Bell v. State, 593 So.2d 123 (Ala.Crim.App.1991) — the case the Court of Criminal Appeals quoted in Ingram II for the ‘clearly erroneous’ standard of review — the Court of Criminal Appeals observed:
“ ‘The trial court did adopt verbatim the proposed order tendered by the state; however, from our review of the record, we are convinced that the findings and conclusions are those of the trial court. The record reflects that the trial court was thoroughly familiar with the case and gave the appellant considerable leeway in presenting evidence to support his claims.’
“Bell, 593 So.2d at 126 (emphasis added). The undisputed facts in the present case obviously prevent a similar conclusion here.
“We are forced by the nature of the errors present in the June 8 order to reverse the judgment of the Court of Criminal Appeals. In the simplest terms, the patently erroneous nature of the statements regarding the trial judge’s ‘personal knowledge’ and observations of Ingram’s capital-murder trial undermines any confidence that the trial court’s findings of fact and conclusions of law are the product of the trial judge’s independent judgment and that the June 8 order reflects the findings and conclusions of that judged’

Ex parte Ingram, 51 So.3d at 1122-25 (footnote omitted).

In Ex parte Scott, the trial court adopted the State’s answer as its order dismissing a Rule 32 petition. This Court concluded that the trial court erred in adopting the State’s answer as its order because a party’s answer is infected with “adversarial zeal” and that “verbatim adoption of the State’s answer to [a] Rule 32 petition as its order, by its nature, violates this Court’s holding in Ex parte Ingram,” which requires that a trial court’s order reflect the independent and impartial findings of the trial court. — So.3d at-.

Jenkins’s argument as to this issue is twofold: First, he contends that by upholding the trial court’s order here the Court of Criminal Appeals so limited the holdings of Ex parte Ingram and Ex parte Scott that, unless a petitioner presents a factual scenario exactly like the scenarios presented in those cases, the petitioner would not be entitled to relief. Second, he contends that the facts suggest that the trial court could not have made the independent findings, credibility determinations, and conclusions the order purports it made in the short time that elapsed between receiving the proposed order and signing it. The Court of Criminal Appeals stated:

“Jenkins argues that the circuit court erroneously adopted the State’s proposed order denying relief. Specifically, he argues that the circuit court’s adoption of the State’s proposed order violated his right to ‘independent findings of fact and conclusions of law.’ (Jenkins’s brief, at 15.)
“In Ex parte Ingram, 51 So.3d 1119, 1122 (Ala.2010), the Alabama Supreme Court reaffirmed ‘the general rule ... that, where a trial court does in fact adopt the [prevailing party’s] proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court.’ The Court went on to state that ‘[i]n this unusual case, [it could not] conclude that the above-stated “general rule” was applicable’ because the adopted order contained indisputably false statements. Id. at 1123-24. Specifically, the judge who signed the State’s proposed order stated that he had presided over Ingram’s trial and had personal knowledge of the trial proceedings when, in fact, another judge had presided over the trial. Id. The Supreme Court then held that ‘the patently erroneous nature of the statements regarding the trial judge’s “personal knowledge” and observations of Ingram’s capital-murder trial undermines any confidence that the trial court’s findings of fact and conclusions of law are the product of the trial judge’s independent judgment and that the ... order reflects the findings and conclusions of that judge.’ Id. at 1125 (emphasis in the original). Because the order established that the conclusions were not those of the judge, the Supreme Court reversed the dismissal of Ingram’s Rule 32 petition. Id.
“Later, in Ex parte Scott, [Ms. 1091275, March 18, 2011] — So.3d -, -(Ala.2011), the Alabama Supreme Court held that the circuit court erred in adopting verbatim as its order the State’s answer to a Rule 32 petition. After reaffirming its earlier decision in Ex parte Ingram, the Court held that it constitutes error for a circuit court to adopt the prevailing party’s answer because an answer ‘is infected with ... adversarial zeal [and] because an answer is a pleading that never is prepared with the pretense of impartiality.’ Id. Because a party’s answer ‘is infected with ... adversarial zeal,’ the ‘verbatim adoption of the State’s answer to [a] Rule 32 petition as its order, by its nature, violates [the Court’s] holding in Ex parte Ingram [that the circuit court’s order must] reflect the independent and impartial findings and conclusions of the trial court.’ Id.
“Unlike Ex parte Ingram, the circuit court’s order in this case does not contain statements that are ‘patently erroneous.’ 51 So.3d at 1125. Also, unlike Ex parte Scott, the circuit court adopted the State’s proposed order as opposed to an answer ‘infected with ... adversarial zeal.’ — So.3d at-. Further, the circuit court’s order purports to constitute the circuit court’s independent judgment. For instance, in its order denying relief, the circuit court stated that it had ‘thoroughly reviewed and considered’ Jenkins’s current Rule 32 petition, the State’s answer, the evidence presented at the evidentiary hearing on Jenkins’s first Rule 32 petition, and the record on direct appeal, prior to dismissing the current petition. Based on these facts, this Court holds that ‘the general rule ... that, where a trial court does in fact adopt the [prevailing party’s] proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court,’ Ex parte Ingram, 51 So.3d at 1122, applies, and no error resulted from the circuit court’s adoption of the State’s proposed order.
“Next, Jenkins’s argument that the circuit court did not make independent findings of facts or conclusions of law because it lacked sufficient time to review all the records, pleadings, and the 24-page proposed order in the short time between receiving the State’s proposed order and adopting the order is based on the assumption that the circuit court was idle during the 55 days between when Jenkins filed his Rule 32 petition and when the circuit court dismissed the petition. Jenkins filed his Rule 32 petition on October 1, 2008. The State filed its answer and motion to dismiss Jenkins’s petition on October 31, 2008. The circuit court signed its order denying relief on November 25, 2008. Almost two months elapsed between the filing of Jenkins’s petition and the circuit court’s issuing its order. Contrary to Jenkins’s assertion, 55 days provided plenty of time for the circuit court to independently review the records and the pleadings filed by the parties.”

Jenkins, 105 So.3d at 1240-42 (footnote omitted).

Jenkins points to the following facts to suggest that the trial judge signed the proposed order without carefully reading and verifying it and that the order is not a product of the trial court’s independent judgment:

1. The judge who presided over the successive Rule 32 proceedings was new to Jenkins’s case and was unfamiliar with the case, including the capital-murder trial and the initial Rule 32 proceedings;
2. Although the judge may have been aware of the few pleadings filed in the successive Rule 32 proceedings, at no point during the brief pendency of this case did the judge review the trial transcripts, the initial Rule 32 hearing transcripts, or the prior pleadings in this case;
3. The judge received, unsolicited, a proposed order from the State. The order was 24 pages long and contained more than 30 citations to the trial transcript or the initial Rule 32-proceeding transcript. The order made credibility determinations that were adverse to Jenkins, purported to deny all relief in the case, and noted that Jenkins would have 42 days from the signing of the order to file a notice of appeal;
4. Within hours of receiving the State’s order, the judge signed it without changing a word;
5. One week after adopting verbatim the State’s proposed order, the same trial judge granted Jenkins’s previously filed motion to respond to the State’s answer and motion to dismiss, ordering Jenkins to respond within 45 days. The trial judge entered and signed the order in his own handwriting on the “case action summary,” immediately below a clerk’s entry indicating that the ease had already been dismissed.

Crucial to Jenkins’s argument that the trial judge signed the proposed order without reading it carefully and without verifying its contents is his contention that the trial judge signed the order within hours of receiving it. This contention is based on Jenkins’s “belief’ that the earliest the trial judge could have seen the proposed order would have been Tuesday, November 25, 2008, the date the order was signed in Ashville, because, as explained above, the trial judge was sitting in Pell City the previous day. Also crucial to Jenkins’s argument is his contention that the trial judge had not reviewed the records from his prior trial and Rule 32 proceedings. Neither of these crucial contentions to Jenkins’s argument are founded upon facts contained in the record, and they amount to only speculation and conjecture. Nothing in the record indicates when the trial judge received the proposed order or where he was sitting on November 24 and 25, 2008. Additionally, nothing in the record indicates that the trial judge did not review the transcripts from Jenkins’s prior proceedings. It is well settled that this Court cannot consider arguments founded on matters not contained in the record. Etherton v. City of Homewood, 700 So.2d 1374 (Ala.1997).

The circumstances of this case differ from the circumstances presented in Ex parte Ingram and Ex parte Scott. In both of those cases it was clear from evidence before this Court that the orders signed by the trial court were not the product of the trial court’s independent judgment. In Ingram, that fact was clear from the statements contained in the order regarding the trial judge’s “personal knowledge” and observations of Ingram’s capital-murder trial when the trial judge signing the proposed Rule 32 order did not reside over Ingram’s capital-murder trial. In Ex parte Scott, that fact was clear from the materials before this Court, which contained the State’s responsive pleading adopted by the trial court as its order. In this case, however, there is nothing definitive in the record or on the face of the order that indicates that the order is not the product of the trial court’s independent judgment.

In granting the petition for writ of cer-tiorari in this case, this Court was concerned by Jenkins’s allegation that the trial court had signed the proposed order submitted by the State without first carefully reviewing the order and the record of the prior proceedings. This allegation has not been substantiated by the record. Although the issue raised by Jenkins is a close one, without more, we must agree with the Court of Criminal Appeals’ conclusion that Jenkins’s argument as to this issue “[assumes] that the circuit court was idle during the 55 days between when Jenkins filed his Rule 32 petition and when the circuit court dismissed the petition.” 105 So.3d at 1242.

This Court’s decision today should not be read as entitling a petitioner to relief in only those factual scenarios similar to those presented in Ex parte Ingram and Ex parte Scott. A Rule 32 petitioner would be entitled to relief in any factual scenario when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial court’s independent judgment. See Ex parte Ingram.

Conclusion

On February 7, 2012, this Court granted Jenkins’s petition for a writ of certiorari only as to the ground challenging the Court of Criminal Appeals’ affirmance of the trial court’s order dismissing Jenkins’s Rule 32 petition on the bases that the trial court adopted verbatim the State’s proposed order, and we held in abeyance the other grounds raised in Jenkins’s petition pending resolution of this issue. We now affirm the Court of Criminal Appeals’ judgment insofar as it upholds the trial court’s adoption of the State’s proposed order denying Jenkins’s Rule 32 petition; as to the remaining grounds we now deny the petition for a writ of certiorari.

AFFIRMED AS TO GROUND ON WHICH CERTIORARI REVIEW WAS GRANTED; WRIT DENIED AS TO REMAINING GROUNDS.

MALONE, C.J., and WOODALL, STUART, PARKER, MURDOCK, and SHAW, JJ., concur.

MAIN and WISE, JJ., recuse themselves.

      . This Court held in abeyance the remaining grounds raised in the certiorari petition pending the disposition of this issue.

      . Jenkins states that following the trial court’s denial of this Rule 32 petition, the parties litigated the completeness of the record on appeal and that this litigation was presided over by Judge Robert E. Austin.

      . On October 2, 2008, Jenkins moved the federal district court to stay his habeas proceedings to allow him to file another Rule 32 petition reasserting his juror-misconduct claim in light of this Court’s decision in Ex parte Burgess. On November 12, 2008, the federal district court granted Jenkins’s motion to stay his habeas proceedings.

      . As stated above, the State’s proposed order was mailed on Friday November 21, 2008, to the courthouse in Ashville.

      . Jenkins asks this Court to remand this case for an evidentiary hearing as to the factual circumstances surrounding the trial court's signing of the proposed order. This, however, is not contemplated by the decisions in Ex parte Ingram and Ex parte Scott. Jenkins cites this Court to Jefferson v. Upton, - U.S. -. 130 S.Ct. 2217. 176 L.Ed.2d 1032 (2010), in support of his request for a full evidentiary hearing on the issue of the proposed order. However, Jefferson is distinguishable because it involved a federal habeas petition in which a full evidentiary hearing was permitted as to the facts pertinent to the habeas application.