author: SMITH, Justice.

text:
    Ex parte Christopher McCULLOUGH (In re Christopher McCullough v. State of Alabama).
    1070438.
    Supreme Court of Alabama.
    April 24, 2009.
    T. Robin McIntyre, Dadeville, for petitioner.
    Troy King, atty. gen., and Robin D. Scales, asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   SMITH, Justice.

Christopher McCullough was convicted of one count of second-degree burglary, a violation of § 13A-7-6(b), Ala.Code 1975. The trial court sentenced him to 80 months in prison. In an unpublished memorandum, the Court of Criminal Appeals affirmed McCullough’s conviction and sentence. McCullough v. State, 21 So.3d 755 (Ala.Crim.App.2007). We granted McCullough’s petition for a writ of certiorari to determine whether the testimony of an accomplice was sufficiently corroborated so as to meet the requirements of § 12-21-222, Ala.Code 1975. We conclude that it was not, and we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal for McCullough.

Facts and Procedural History

On March 8, 2002, at approximately 11:00 p.m., Myrtle Burdell was awakened by the ringing of the doorbell to her residence. Without turning on a light, Burdell went to her back door and looked out. Seeing no one, she proceeded to the living-room area when she again heard the doorbell; she then heard a noise she described as sounding like an explosion. Burdell ran down the hall, and, upon seeing two men, she screamed at them to get out of her house. The men immediately left through the back door, which they had kicked open. Burdell telephoned the police and, shortly after the telephone call, Detective Angela Spates and other officers from the Lanett Police Department arrived at Burdell’s residence. McCullough and Billy Norris were subsequently arrested and indicted for second-degree burglary in connection with the incident.

At trial, Burdell stated that she could not identify the two men who had entered her house. Specifically, Burdell testified as follows:

“Q. [The prosecutor:] Can you describe the two people in your house, the people that broke in your house?
“A. Can I identify them?
“Q. Can you describe them?
“A. Can I describe them?
“Q. Yes.
“A. No. I think they were short. I think it’s because as they were going down — -I don’t know. I said they were short.
“Q. You don’t [know] if they were?
“A. I can’t identify them, no.
“Q. Now, do you know that young man seated over there at that table?
“A. You know, the day that that happened, I went to the Chicken Stop[] that morning, and I held the door open for a young man. That could have easily been him.
“Q. Okay.
“A. And they followed me home.
“Q. But you don’t know his name?
“A. That morning I think they knew where I lived. No, I can’t identify him really.”

On cross-examination, Burdell was questioned more extensively about her inability to identify the perpetrators. She testified as follows:

“Q. You said you can’t identify these individuals; is that correct? You can’t identify who was in your house?
“A. No, I cannot identify them.
“Q. What was the light like when you saw them?
“A. It was dark. It was around 11 o’clock at night.
“Q. Do you know what color skin they had?
“A. No, I could not tell. They could have had a ski mask on. They could have had anything. They had on jackets. It was in March. No way I could identify them.
“Q. Nor even tell what race they belonged to?
“A. No, I couldn’t. I thought they were black. It looked black with the night light and the light shining in. Whether it was a ski mask I was looking at or whether they were really black, I don’t know.
“Q. How far away from these individuals — how far away were you from them when you saw them?
“A. May I stand up?
“Q. You may.
“A. That close. (Indicating.)
“Q. Just a little over an arm’s reach away?
“A. Yes, sir.
“Q. Do you have any reason to think anybody followed you home?
“A. At that particular time, I wasn’t afraid to go out at night wherever. I didn’t pay that much attention who was behind me, but I often wondered if somebody followed me home because they were living just above the Chicken Stop where I had gotten fish that day on Friday. They had lived on that street. So in my mind I just wondered, but nothing concrete, no, sir.”

Norris testified at McCullough’s trial that he and McCullough entered Burdell’s home with the intent to steal. He stated that, upon arriving at Burdell’s house, he rang the doorbell and that when no one answered he kicked the door in. According to Norris, both he and McCullough then entered but immediately left when they heard someone say, “Get out of my house.” Norris said he and McCullough ran from Burdell’s house to McCullough’s car, which was parked near the golf course behind Burdell’s house. Norris further stated that he and McCullough had been together all day on the day of the burglary; that he was wearing a bandana and McCullough had on a ski mask while they were in Burdell’s house; and that he had never seen Burdell before his court appearance on the burglary charge stemming from this incident.

Detective Spates’s testimony at McCullough’s trial was limited to her observations of the damage to Burdell’s back door, the location of Burdell’s house in relation to the golf course, and the fact that she had arrested McCullough 18 days after the break-in for the burglary of Burdell’s residence.

McCullough was convicted of second-degree burglary and was sentenced to 80 months in prison. McCullough appealed, arguing that the trial court erred (1) in denying his motion to strike the accomplice testimony of Norris and (2) in denying his motion for a judgment of acquittal. Specifically, McCullough argued that there was no evidence connecting him to the crime other than Norris’s testimony, and he contended that Norris’s testimony was not sufficiently corroborated under § 12-21-222, Ala.Code 1975. The Court of Criminal Appeals affirmed McCullough’s conviction and sentence, stating in its unpublished memorandum that Norris’s testimony was corroborated by Burdell’s and Detective Spates’s testimony.

Discussion

As he did in the trial court and in the Court of Criminal Appeals, McCullough argues before this Court that Norris’s testimony was not sufficiently corroborated to meet the requirements set forth in § 12-21-222, Ala.Code 1975. Section 12-21-222 provides:

“A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.”

McCullough contends that Burdell’s and Detective Spates’s testimony was “not sufficient evidence tending to connect McCullough with the commission of second-degree burglary ... if the testimony of Billy Norris, the accomplice, is eliminated.” McCullough’s brief, p. 4.

The State contends that it provided sufficient evidence to corroborate Norris’s testimony implicating McCullough in the burglary of Burdell’s house. The Court of Criminal Appeals, in its unpublished memorandum, agreed with the State’s position:

“Norris’s testimony was corroborated by [Burdell’s] testimony that the men who broke into her home rang the doorbell; that they entered her home by kicking in her back door; that they could have been wearing ski masks; and that they turned and ran when she yelled for them to get out of her home. Norris’s testimony was further corroborated by [Detective] Spates’s testimony that the back door of the victim’s home had been kicked in and that the backyard was on a golf course. Consequently, the State presented sufficient evidence to corroborate Norris’s testimony and connect [McCullough] with the crime in question. Therefore, [McCullough’s] argument is without merit, and we affirm the trial court’s judgment.”

In addition to Norris’s testimony, the Court of Criminal Appeals relied on Bur-dell’s testimony regarding the manner in which the crime was committed: the ringing of the doorbell, the kicking in of the back door, the possibility that the perpetrators were wearing ski masks, and the fact that her house was located on a golf course.

In Ex 'parte Hardley, 766 So.2d 154 (Ala.1999), this Court addressed the test for determining the sufficiency of evidence corroborating an accomplice’s testimony:

“Discussing § 12-21-222, at § 300.01(5), C. Gamble, McElroy’s Alabama Evidence (5th ed. 1996), Professor Gamble notes:

“ ‘Nonaceompliee evidence of the defendant’s guilt, to be sufficient corroboration of the accomplice’s testimony to take the case to the jury, must tend to connect the defendant with the crime or point to the defendant, as distinguished from another person, as the perpetrator of the crime. Nonac-complice evidence which merely confirms the way and manner in which the crime was committed, but which is colorless and neutral insofar as the defendant’s connection with the crime is concerned, is not sufficient corroboration to warrant submission of the case to the jury.’ ”

766 So.2d at 157.

This Court has elaborated on this test:

“Under § 12-21-222, Ala.Code 1975, a felony conviction ‘cannot be had on the testimony of an accomplice unless corroborated, by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.’ (Emphasis added.) In reviewing a claim of insufficient corroboration, the Alabama appellate courts have stated that
“ ‘[t]he test for determining whether there is sufficient corroboration of the testimony of an accomplice consists of eliminating the testimony given by the accomplice and examining the remaining evidence to determine if there is sufficient incriminating evidence tending to connect the defendant with the commission of the offense.’
“Andrews v. State, 370 So.2d 320, 321 (Ala.Crim.App.), cert denied, 370 So.2d 323 (Ala.1979), citing Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973). The evidence corroborating the accomplice’s testimony and connecting the defendant to the offense can be purely circumstantial evidence. Mathis v. State, 414 So.2d 151 (Ala.Crim.App.1982). But, “‘[i]t must be of a substantive character, must be inconsistent with the innocence of the accused, and must do more than raise a suspicion of guilt .... ” Sorrell v. State, 249 Ala. 292, [293,] 31 So.2d 82, 83 [ (1947) ].’ Ex parte Bell, 475 So.2d 609, 613 (Ala.), cert denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985).”

Ex parte Bullock, 770 So.2d 1062, 1067 (Ala.2000).

Furthermore, in Ex parte Stewart, 900 So.2d 475 (Ala.2004), this Court, quoting Ex parte Hunt, 744 So.2d 851, 858-59 (Ala. 1999), noted:

“ ‘The Court of Criminal Appeals has ... added the following caveats to the rule [regarding corroboration of accomplice testimony]:
“ ‘ “ ‘The tendency of the corroborative evidence to connect [the] accused with the crime, or with the commission thereof, must be independent, and without the aid of any testimony of the accomplice; the corroborative evidence may not depend for its weight and probative value on the testimony of the accomplice, and it is insufficient if it tends to connect [the] accused with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the accomplice.’ 23 C.J.S. Criminal Law, Section 812(b)(1961).”
‘Mills v. State, 408 So.2d [187,] 191-92.’
“ ‘ “ ‘ “LEJvidence which merely raises a conjecture, surmise, speculation, or suspicion that [the] accused is the guilty person is not sufficiently corroborative of the testimony of an accomplice to warrant a conviction.” 28 C.J.S. Criminal Law, Section 812(5)(b).’ Staton v. State, 397 So.2d 227, 232 (Ala.Crim.App.1981).”
‘Steele v. State, 512 So.2d 142, 143-44 (Ala.Crim.App.1987).’ ”

900 So.2d at 477-78 (emphasis added).

Applying these principles to the facts of this case, we conclude that the Court of Criminal Appeals erred in affirming McCullough’s conviction and sentence. Applying the rule that requires that Norris’s testimony must first be subtracted and the remaining evidence examined, we are left with the testimony of Detective Spates and of the victim, Burdell. Detective Spates’s testimony provided evidence merely showing “the commission of the offense or the circumstances” surrounding the crime. See § 12-21-222, Ala.Code 1975. Detective Spates’s testimony does not connect McCullough to the crime but simply shows that a crime had been committed. When considered without the testimony of Norris, the alleged accomplice, this evidence does not tend to show McCullough’s guilt.

Likewise, Burdell’s testimony deals with the circumstances of the crime rather than any participation of McCullough in the burglary. Although she was a little more than an arm’s length away from the perpetrators, the only characteristics Burdell could provide as to their identity were that she thought that the two men were wearing jackets and that they might have been black or they could have been wearing ski masks. Burdell also testified that she initially told the police investigating the burglary that the men were “short,” but at trial she concluded that she could not attest to their height as an identifying characteristic.

Without Norris’s testimony, Burdell’s testimony does no more than identify the burglars as males, possibly black or possibly wearing ski masks, perhaps short, but perhaps not. This evidence does no more than “raise a suspicion of [McCullough’s] guilt.” Bullock, 770 So.2d at 1067. Bur-dell’s testimony is insufficient corroboration of Norris’s testimony because it “tends to connect [McCullough] with the offense only when given direction or interpreted by, and read in conjunction with the testimony of the accomplice [Norris].” Stewart, 900 So.2d at 478.

The remaining evidence provided by Burdell against McCullough was her testimony regarding the man she had seen at the Chicken Stop restaurant earlier in the day of the robbery. In his dissent to the Court of Criminal Appeals’ unpublished memorandum, Judge Welch addressed the problems with this testimony:

“[T]he trial court ruled that ‘based on the testimony of the victim in this case, specifically her testimony as to the fact that she identified that she could have possibly seen the alleged perpetrator of the crime that day and that he possibly followed her home and then perpetrated the crime’ Norris’s testimony was sufficiently corroborated. (R. 46.)
“Unlike the majority, I do not believe that Norris’s testimony was sufficiently corroborated to sustain a conviction for second-degree burglary.
“ ‘A conviction for a felony cannot be had on the testimony of an accomplice unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. Code of Alabama 1975, § 12-21-222. The test for determining the sufficiency of the corroboration is a subtraction process. First, the testimony of the accomplice must be eliminated, and then if, upon examination of all the other evidence, there is sufficient evidence tending to connect the defendant with the commission of the offense, there is sufficient corroboration.’
“Carden v. State, 612 So.2d 509, 513 (Ala.Crim.App.1992) (citations omitted).
“To prove a prima facie case of second-degree burglary, the State had to present evidence showing that McCullough ‘unlawfully enter[ed] a lawfully occupied dwelling-house with intent to commit a theft or felony therein.’ § 13A-7-6(b), Ala.Code 1975. I do not believe that the State presents any non-accomplice evidence that connected McCullough to the crime or that corroborated Norris’s testimony. In my opinion, the testimony of both Burdell and [Detective] Spates merely showed that the offense occurred and the circumstances of the offense. See § 12-21-222, Ala.Code 1975. Moreover, I do not agree with the trial court’s finding that Burdell’s testimony that McCullough ‘could have’ been the man she held a door open for at the Chicken Stop restaurant and that the man could have followed her home corroborated Norris’s testimony. (R. 24.)
“ ‘Q. [The prosecutor:] [D]o you know that young man [referring to McCullough]?
“ ‘A. [Burdell:] You know, the day that that happened, I went to the Chicken Stop that morning, and I held the door open for a young man. That could have easily been him.
“ ‘Q. Okay.
“ ‘A. And they followed me home.
“ ‘Q. But you don’t know his name?
“ ‘A. That morning I think they knew where I lived. No, I can’t identify him really.’
“(R. 24.)
“It is clear from the context of Bur-dell’s entire testimony that the above was not meant as an assertion that McCullough was the man from the Chicken Stop or an assertion that a man from the Chicken Stop did follow her home; it was merely Burdell’s hypothesis that the man from the Chicken Stop was responsible for the burglary. Thus, I do not believe this testimony — which is merely conjecture — can serve as corroboration of accomplice testimony.”

McCullough v. State, 21 So.3d at 757 (Welch, J., dissenting).

We agree with Judge Welch’s dissenting opinion. Burdell’s testimony does not show that McCullough was, in fact, involved in the burglary. Instead, her testimony is merely conjecture or suspicion, which is insufficient to support a conviction. Burdell could not identify McCullough as one of the men who was in her house on the night of the burglary or as the man she had seen earlier that day at the Chicken Stop. Moreover, her speculation that the man she encountered at the Chicken Stop was one of the intruders is further weakened by Norris’s testimony that he and McCullough had been together all day on the day of the burglary and that Norris had never seen the victim before he appeared in court for the burglary charge stemming from this incident.

Conclusion

Because the evidence was insufficient under § 12-21-222, Ala.Code 1975, to corroborate Norris’s testimony that McCullough had participated in the burglary, we reverse the judgment of the Court of Criminal Appeals and render a judgment of acquittal.

REVERSED AND JUDGMENT RENDERED.

COBB, C.J., and LYONS, WOODALL, STUART, BOLIN, PARKER, and MURDOCK, JJ., concur.

SHAW, J., recuses himself.

      . The Chicken Stop is a restaurant located in Lanett.

      . The State points out that "while Norris’s race is not apparent from the record, the case action summary ... shows [that] McCullough is black.” State’s brief, p. 11.


source: Caselaw Access Project

author: BASCHAB, Presiding Judge.

license: Public Domain

text:
    STATE of Alabama v. Michael David CARRUTH.
    CR-06-1967.
    Court of Criminal Appeals of Alabama.
    May 30, 2008.
    Rehearing Denied Aug. 15, 2008.

      Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellant.
    Glenn L. Davidson, Mobile, for appellee.
   BASCHAB, Presiding Judge.

On October 9, 2003, the appellee, Michael David Carruth, was convicted of four counts of capital murder for the killing of William Brett Bowyer. The murder was made capital because he committed it during the course of a kidnapping, see § 13A-5-40(a)(l), Ala.Code 1975; because he committed it during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975; because he committed it during the course of a first-degree burglary, see § 13A-5-40(a)(4), Ala.Code 1975; and because the victim was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975. He was also convicted of attempted murder, first-degree robbery, and first-degree burglary. The jury unanimously recommended that the appellee be sentenced to death on the capital murder convictions. The trial court followed the jury’s recommendation and sentenced him to death on the capital murder convictions. It also sentenced him to serve terms of life in prison on the attempted murder, first-degree robbery, and first-degree burglary convictions. We affirmed the appellee’s convictions and sentences for capital murder and attempted murder, but reversed his convictions and sentences for first-degree robbery and first-degree burglary. See Carruth v. State, 927 So.2d 866 (Ala. Crim.App.2005). Although he filed an application for a rehearing in this court, the appellee did not file a petition for a writ of certiorari in the Alabama Supreme Court. This court issued a certificate of judgment on November 2, 2005.

On October 25, 2006, the appellee filed a Rule 32 petition, challenging his convictions and sentences. He also sought “an out-of-time appeal to the Alabama Supreme Court” based on allegations that he did not appeal through no fault of his own, see Rule 32.1(f), Ala. R.Crim. P., and that his counsel rendered ineffective assistance because he did not petition the Alabama Supreme Court for certiorari review. (C.R. 5.) After the State responded, the circuit court entered an order in which it stated:

“To the extent this court has jurisdiction, Petitioner, Michael David Carruth is granted permission to file an Out of Time Petition for Writ of Certiorari to the Alabama Supreme Court.
“All Rule 32 issues are reserved by this court and shall be addressed subsequent to ruling by the Supreme Court of Alabama on Petitioner, Michael David Carruth’s ‘Petition for Writ of Certiora-ri.’ ”

(C.R. 162.) This appeal by the State followed.

The State argues that the circuit court erred in granting the appellee permission to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. For the reasons set forth herein, we agree.

With regard to petitions for writs of certiorari, Rule 39(a), Ala. R.App. P., provides, in pertinent part:

“Certiorari review is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only when there are special and important reasons for the issuance of the writ.”

(Emphasis added.) The “Court Comment to Amendment to Rule 39 Effective May 19, 2000, as to death-penalty cases and August 1, 2000, as to all other cases” states, in pertinent part:

“The amendment changes the standard for certiorari review of criminal cases in which the death penalty is imposed. For provisions relating to death-penalty cases, see subsection (a)(2)(A)(E). The amendment removes the provision in the former Rule 39(c) that provided that a petition for a writ of certio-rari to the Supreme Court in a case in which the death penalty was imposed would be granted as a matter of right. With this amendment, review of death-penalty cases will be at the discretion of the Stipreme Court. The Supreme Court retains the authority to notice any plain error or defect in the proceedings under review in those cases. In a death-penalty case, the petitioner must concisely state the grounds when review is sought based on a failure to recognize as prejudicial any plain error or defect. That statement must include a description of the issue and circumstances warranting plain-error review. The Supreme Court retains the authority to enlarge the time for filing a petition for a writ of certiorari in a death-penalty case. Lastly, the Supreme Court may notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court or the Court of Criminal Appeals, but it is not required to do so.”

(Emphasis added.)

A.

The State argues that Rule 32.1(f), Ala. R.Crim. P., did not provide a valid basis for granting his requested relief. In Elliott v. State, 768 So.2d 422 (Ala.Crim. App.1999), citing a previous version of Rule 32.1(f), Ala. R.Crim. P., the circuit court granted Elliott permission to file an out-of-time application for a rehearing in this court. We struck the out-of-time application for a rehearing, stating:

“Rule 32.1(f), Ala. R.Crim. P., does not entitle Elliott to the relief the circuit court granted. Rule 32.1 states, in pertinent part:
“ ‘Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute relief on the ground that:
“ ‘(f) The petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner’s part.’
“It is clear from the wording of this rule that it applies only to situations where the notice of appeal is untimely. This rule makes no mention of, and indeed it has no bearing on, applications for rehearing. The ramifications of a trial court’s ruling granting an out-of-time application for rehearing are too numerous to comprehend. It is safe to assume that such a ruling would impact the finality of criminal judgments. We write only to foreclose other postconviction petitions that make this identical allegation.”

Elliott, 768 So.2d at 423.

Rule 32.1, Ala. R.Crim. P., currently provides, in pertinent part:

“Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
“(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.”

(Emphasis added.) Although Rule 32.1(f), Ala. R.Crim. P., has been amended to include out-of-time appeals from rulings on Rule 32 petitions, our reasoning in Elliott remains valid. By its plain language, Rule 32.1(f), Ala. R.Crim. P., applies only in situations where the notice of appeal from a conviction and sentence or from a dismissal or denial of a Rule 32 petition is untimely. It does not mention and does not have any application to petitions for writs of certiorari in the Alabama Supreme Court. Accordingly, Rule 32.1(f), Ala. R.Crim. P., did not support the granting of permission for the appellee to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court.

B.

The State also argues that the ap-pellee’s contention that his counsel rendered ineffective assistance on direct appeal because he did not file a petition for a writ of certiorari in the Alabama Supreme Court was not a valid basis for granting his requested relief. We addressed a similar situation in Birdsong v. State, 929 So.2d 1027, 1028-29 (Ala.Crim.App.2005), as foEows:

“Birdsong contends that his appellate counsel was ineffective for not pursuing certiorari review with the Alabama Supreme Court of this Court’s affirmance of his convictions and sentences. However, it is well settled that a defendant is not entitled to counsel on a discretionary appeal to the Alabama Supreme Court. See Jackson v. State, 612 So.2d 1356 (Ala.Crim.App.1992), and Cunningham v. State, 611 So.2d 510 (Ala.Crim.App. 1992). Therefore, Birdsong could not be denied the effective assistance of counsel as a result of his appellate counsel’s not seeking certiorari review, and the circuit court properly denied this allegation of ineffective assistance of appellate counsel.”

Also, in Jenkins v. State, 972 So.2d 111, 124-27 (Ala.Crim.App.2004), affd in relevant part, rev’d on other grounds, 972 So.2d 159 (Ala.2005), a death penalty case, we held:

“The United States Supreme Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), ‘held that denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor.’ Pennsylvania v. Finley, 481 U.S. 551, 554, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). The Douglas Court also noted, ‘We are not here concerned with problems that might arise from the denial of counsel for the preparation of a petition for discretionary or mandatory review beyond the stage in the appellate process at which the claims have once been presented by a lawyer and passed upon by an appellate court.’ 372 U.S. at 356, 83 S.Ct. 814. The United States Court of Appeals for the Eleventh Circuit, in Williams v. Turpin, 87 F.3d 1204, 1209 (11th Cir.1996), aptly stated the rationale behind the Douglas holding:
“‘The right to effective assistance of counsel during the first appeal attaches because once a state has created a right of appeal, the state must ensure that all persons have an equal opportunity to enjoy the right. [Douglas v. California, 372 U.S. 353,] at 356-57, 83 S.Ct. [814] at 816 [(1963)]. However, “once a defendant’s claims of error are organized and presented in a lawyerlike fashion” during the first appeal as of right, the obligation of ensuring equal access to the court system is no longer constitutionally required. Ross v. Moffitt, 417 U.S. 600, 615-16, 94 S.Ct. 2437, 2446-47, 41 L.Ed.2d 341 (1974). “The duty of the State ... is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Id.’
“We have consistently followed the Douglas holding and concluded that the right to counsel does not extend beyond the first appeal as of right. See State v. Tarver, 629 So.2d 14 (Ala.Crim.App. 1993); Jackson v. State, 612 So.2d 1356 (Ala.Crim.App.1992); Cunningham v. State, 611 So.2d 510 (Ala.Crim.App. 1992); James v. State, 564 So.2d 1002 (Ala.Crim.App.1989); Kinsey v. State, 545 So.2d 200 (Ala.Crim.App.1989); Thomas v. State, 511 So.2d 248 (Ala. Crim.App.1987); Bies v. State, 418 So.2d 940 (Ala.Crim.App.1982). We have also applied the Douglas holding to death-penalty cases. See State v. Tarver, supra, and Thomas v. State, 511 So.2d 248 (Ala.Crim.App.1987).
“In Alabama, the right to appeal a criminal conviction is a statutory right. See § 12-22-130, Ala.Code 1975. A defendant convicted of a felony has the right to appeal his conviction to the Alabama Court of Criminal Appeals; therefore, the first appeal as of right is to this Court. See § 12-3-9, Ala.Code 1975 (‘The Court of Criminal Appeals shall have exclusive appellate jurisdiction of all ... felonies.’). ‘Appellant is constitutionally entitled to effective assistance of counsel, which includes the filing of an appellate brief on first appeal as a matter of right.’ Johnson v. State, 584 So.2d 881, 883 (Ala.Crim.App.1991). As we stated in State v. Tarver, 629 So.2d at 18, also a death-penalty case, ‘a criminal defendant is guaranteed one appeal from his conviction, and that appeal is to this court.’
“Recently, in Ex parte Berryhill, 801 So.2d 7, 11 (Ala.2001), the Alabama Supreme Court reiterated the principle that a defendant has a constitutional right to counsel in his first appeal:
“ ‘Historically, courts have emphasized the importance of appellate review:
“ ‘ “The need for forceful advocacy does not come to an abrupt halt as the legal proceeding moves from the trial to [the] appellate stage. Both stages ..., although perhaps involving unique legal skills, require careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently [overlooked].”
‘Penson v. Ohio, 488 U.S. 75, 85, 109 S.Ct. 346,102 L.Ed.2d 300 (1988).
“ ‘ “In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that — like a trial — is governed by intricate rules that to a layperson would be hopelessly forbidding.”
‘Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Therefore, the constitutional right to effective assistance of counsel applies to appellate proceedings. Id., 469 U.S. at 398, 105 S.Ct. 830 (criminal defendants have constitutional rights to effective counsel during the first appeal as of right); see Williams v. Turpin, 87 F.3d 1204, 1209 (11th Cir. 1996).’
801 So.2d at 11.
“We are aware that the majority of Alabama cases that have followed Douglas are not death-penalty cases and that at the time our decision in Watkins [v. State, 632 So.2d 555 (Ala.Crim.App. 1992)] was released a defendant convicted of a capital offense and sentenced to death was granted an automatic review by this Court and that a petition for a writ of certiorari was automatically granted by the Alabama Supreme Court. See Rule 39, Ala. R.App. P. However, an appeal to the Alabama Supreme Court is a second appeal conducted after this Court has considered and addressed the issues raised by an attorney in the brief to this Court. The State’s obligation to provide counsel was satisfied by providing counsel on the first appeal to this Court. See Douglas v. California, 372 U.S. at 356, 83 S.Ct. 814; Williams v. Turpin, 87 F.3d at 1209. ... The primary responsibility for reviewing all death-penalty convictions and sentences is with this Court. See § 13A-5-53(a), Ala.Code 1975.
“In Thomas, 511 So.2d 248, this Court addressed a claim that an attorney’s performance in his death-penalty appeal before the United States Supreme Court was deficient. In refusing to recognize the right to counsel beyond that which is constitutionally required, we stated:
“ ‘While we quickly recognize the apparent differences between the two types of punishment [a sentence of death versus a sentence of life imprisonment], we know of no reason why the magnitude of the death sentence should distort the guarantee of effective counsel beyond the scope defined by the Supreme Court.’
511 So.2d at 258. As the Ohio Supreme Court stated in State v. Buell, 70 Ohio St.3d 1211, 1211, 639 N.E.2d 110, 110 (1994):
“ ‘[The defendant’s] 1986 appeal to [the Ohio Supreme Court] was his second appeal. “[T]he right to appointed counsel extends to the first appeal as of right, and no further.” (Emphasis added.) Pennsylvania, v. Finley (1987), 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539, 545. See, also, Evitts v. Lucey (1985), 469 U.S. 387, 394, 105 S.Ct. 830, 834-835, 83 L.Ed.2d 821, 828. Having no constitutional right to counsel on a second appeal, [the defendant] had no constitutional right to the effective assistance of counsel.’
“There is no right to counsel when pursuing a second appeal before the Alabama Supreme Court; therefore, there is no right to the effective assistance of counsel.”

(Footnotes omitted.)

Likewise, we conclude that the appellee was not entitled to counsel on a discretionary appeal to the Alabama Supreme Court. Therefore, he could not have been denied the effective assistance of counsel when his appellate counsel did not file a petition for a writ of certiorari in the Alabama Supreme Court. Accordingly, the appellee’s ineffective-assistance allegations did not support the granting of permission for him to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court.

For the above-stated reasons, the circuit court erred in granting the appellee permission to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. Accordingly, we reverse that court’s order and remand this case for proceedings that are consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, WISE, and WELCH, JJ., concur.

SHAW, J., concurs in the result.

      . On or about October 18, 2007, relying on Rules 2(b) and 39(a)(2)(C), Ala. R.App. P., the appellee filed a "Motion to Suspend the Alabama Rules of Appellate Procedure and Extend the Time for the Filing of a Petition for a Writ of Certiorari" in the Alabama Supreme Court with regard to his direct appeal. However, the supreme court denied that motion.


author: STUART, Justice.

text:
    Ex parte Michael David CARRUTH (In re State of Alabama v. Michael David Carruth).
    1071618.
    Supreme Court of Alabama.
    April 24, 2009.
    Bryan Stevenson, Randall Susskind, Charlotte Morrison, and Alicia D’Addario, Equal Justice Initiative, Montgomery; and Glenn L. Davidson, Mobile, for petitioner.
    Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for respondent.

       Justice Shaw was a member of the Court of Criminal Appeals when that court considered this case.

   On Application for Rehearing

STUART, Justice.

This Court’s opinion of January 23, 2009, is withdrawn, and the following is substituted therefor.

This Court granted Michael David Car-ruth’s petition for a writ of certiorari to review the judgment of the Court of Criminal Appeals reversing the circuit court’s judgment granting him an “out-of-time” petition for a writ of certiorari to this Court. We quash the writ.

Procedural History

In October 2003, Michael David Carruth was convicted of four counts of capital murder for the intentional killing of William Brett Bowyer, who was less than 14 years of age. He was also convicted of the attempted murder of Bowyer’s father, of first-degree robbery, and of first-degree burglary. The trial court sentenced Car-ruth to death for the capital-murder convictions. It also sentenced him to life in prison for the convictions for attempted murder, first-degree robbery, and first-degree burglary. The Court of Criminal Appeals affirmed Carruth’s capital-murder convictions and the corresponding death sentence and his attempted-murder conviction and the corresponding sentence to life imprisonment, but it reversed his convictions for first-degree robbery and first-degree burglary. See Carruth v. State, 927 So.2d 866 (Ala.Crim.App.2005). Car-ruth’s counsel filed an application for a rehearing with the Court of Criminal Appeals, which was overruled. Carruth’s counsel did not file a petition for a writ of certiorari seeldng this Court’s review of the decision of the Court of Criminal Appeals affirming Carruth’s capital-murder convictions and death sentence.

In October 2006, Carruth filed in the circuit court a Rule 32, Ala. R.Crim. P., petition requesting that he be allowed to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. Carruth based his request for relief on Rule 32.1(a), Ala. R.Crim. P., because, he said, his appellate counsel was ineffective for failing to file a petition for a writ of certiorari in the Alabama Supreme Court, and on Rule 32.1(f), Ala. R.Crim. P., because, he said, his failure to “appeal” the decision of the Court of Criminal Appeals to this Court was through no fault of his own. According to Carruth, his appellate counsel was ineffective because counsel did not petition this Court for certiorari review of the decision of the Court of Criminal Appeals. The circuit court entered an order granting Carruth permission to file an out-of-time petition for a writ of certiorari in this Court. The State appealed the circuit court’s order to the Court of to the Criminal Appeals.

The Court of Criminal Appeals held that the circuit court erred in granting Carruth permission to file an out-of-time petition for a writ of certiorari in this Court. The Court of Criminal Appeals held that Car-ruth had not been denied effective assistance of appellate counsel because Carruth was not entitled to counsel on a discretionary appeal to this Court. The Court of Criminal Appeals further held that the plain language of Rule 32.1(f), Ala. R.Crim. P., did not provide a mechanism for granting Carruth permission to file an out-of-time petition for a writ of certiorari in the Alabama Supreme Court. See State v. Carruth, 21 So.3d 764 (Ala.Crim.App. 2008). Carruth then petitioned this Court for a writ of certiorari to review of the decision of the Court of Criminal Appeals; we granted the writ.

Standard of Review

“ ‘[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, the court’s review in a Rule 32 proceeding is de novo.’ Ex paite White, 792 So.2d 1097, 1098 (Ala. 2001).” Ex parte Clemons, [Ms. 1041915, May 4, 2007] — So.3d —, — (Ala. 2007).

Analysis

The underlying and determinative issue in this case is whether a Rule 32, Ala. R.Crim. P., petition is the proper method for obtaining permission to file an out-of-time petition for a writ of certiorari to this Court in a criminal case in which the petitioner has been sentenced to death.

Rule 2(b), Ala. R.App. P., provides:

“(b) Suspension of Rules. In the interest of expediting decision, or for other good cause shown, an appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, an appellate court may not extend the time for taking an appeal, as provided in Rule 4(a)(1); and the supreme court may not extend the time for filing a petition for certiorari to the courts of appeal as provided in Rule 39(b); provided, however, that the supreme comt may extend the time for filing a petition for certiorari in a criminal case in which the death penalty was imposed as punishment.”

(Emphasis added.)

Thus, for a defendant who is sentenced to death and who failed to timely file a petition in this Court for a writ of certiora-ri to review the decision of the Court of Criminal Appeals, the proper means to request permission to file an out-of-time petition is to make the request in a Rule 2(b), Ala. R.App. P., motion in this Court and not in a Rule 32 petition in the trial court. Indeed, Carruth filed a Rule 2(b), Ala. R.App. P., motion in this Court, and it was denied by order on February 28, 2008. A Rule 32 petition simply cannot provide the relief requested by Carruth; therefore, this writ is quashed.

APPLICATION OVERRULED; OPINION OF JANUARY 23, 2009, WITHDRAWN; OPINION SUBSTITUTED; WRIT QUASHED.

LYONS, WOODALL, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., and SHAW, J., recuse themselves.

      . The murder was made capital because the murder was committed during the course of a kidnapping, see § 13A — 5—40(a)( 1), Ala.Code 1975; during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975; and during the course of a burglary, see § 13A-5-40(a)(40), Ala.Code 1975; and because the victim was less than 14 years of age, see § 13A-5-40(a)(15), Ala.Code 1975.

      . Carruth raised several grounds in his petition for certiorari review; however, because of our resolution of this issue, we pretermit discussion of the other grounds presented by Carruth.