Jon Thomas Wallis v. State of Alabama ( 2023 )

Rel: May 5, 2023
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Jon Thomas Wallis
v.
State of Alabama
Appeal from Lauderdale Circuit Court
(CC-11-340.60)
KELLUM, Judge.
Jon Thomas Wallis 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 December 2011 conviction for the
attempted murder of his wife, Tonya Wallis ("Tonya"), and his resulting
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sentence of life imprisonment. This Court affirmed Wallis's conviction
and sentence on direct appeal in an unpublished memorandum issued on
April 26, 2013. Wallis v. State (No. CR-11-1029), 161 So. 3d 1232 (Ala.
Crim. App. 2013) (table). The Alabama Supreme Court denied certiorari
review, and this Court issued a certificate of judgment on August 16,
2013.
On February 25, 2019, Wallis filed the instant Rule 32 petition, his
first. In his petition, Wallis alleged that newly discovered material facts
entitled him to a new trial, specifically, the affidavits of Pamela Dimak
("Pamela") and Jordan Dimak ("Jordan"), which he attached to his
petition. Other than the affidavits attached to the petition, a brief
procedural history of the case, and bare assertions regarding actual-
innocence claims under federal law, Wallis alleged no facts in his petition
in support of his claim. Pamela's affidavit reads:
"In June 2012 Tonya[ 1] Wallis came by my home to visit.
While Tonya was at my home, she and I got onto the subject
of what happened. Tonya said that [Wallis] did not shoot her.
Tonya said it was an accident. She said she was trying to fake
1Tonya's
name is spelled "Tanya" in both affidavits as well as in the
pleadings by the parties. However, her name is spelled "Tonya" in the
record from Wallis's direct appeal, and she signed an affidavit using the
spelling "Tonya." Therefore, we use "Tonya" throughout this opinion,
including in quotations from the affidavits and the parties pleadings.
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a suicide attempt and she did not intend to cause the damage
that she did. I asked her why the suicide attempt and she
said that she had set [Wallis] up on a drug trafficking case
and was going to have to testify. Tonya said she wanted out
of the marriage and when she woke up in the hospital, the
police told her what they thought had happened. Tonya said
she just went along with what the police said happened.
Tonya never told the police that she did it to herself."
(C. 21.) Jordan's affidavit reads:
"In June of 2012 Tonya Wallis came by my mother's
home to visit one afternoon. We got onto the subject of
everything that happened. Tonya Wallis said she accidentally
shot herself. Tonya said she did not intend to cause the
damage/injury that she did. She said that she had set [Wallis]
up on a drug trafficking case and that she was going to testify
against him. She said … it was supposed to be a faked suicide
but when she woke up in the hospital after the brain surgery,
the police were telling her their version of what they thought
had happened. She said she went along with it. She also said
she found her way out of the relationship and her way to get
custody of … their son."
(C. 22.)2
On April 10, 2019, the State filed a response to Wallis's petition,
arguing that the petition was precluded by Rules 32.2(a)(2), (a)(4), (b),
and/or (c), Ala. R. Crim. P., that it was insufficiently pleaded, and that it
2We note that the affidavits were dated March 11, 2019, and March
4, 2019, respectively, after the date Wallis stated on the Rule 32 form he
had mailed his petition. In addition, the circuit clerk stamped Wallis's
petition and the affidavits as filed on March 11, 2019, the same date
Pamela's affidavit was notarized.
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failed to state a claim upon which relief could be granted. The State also
requested an extension of time "to prepare the necessary pleadings to
prove" the grounds of preclusion it had asserted, which the circuit court
granted. (C. 30.) On July 12, 2019, the State filed an answer and a
motion for summary dismissal, arguing that Wallis's newly-discovered-
evidence claim was time-barred by Rule 32.2(c) because Wallis had failed
to allege in his petition when he learned of the alleged statements Tonya
made to Pamela and Jordan and that if Pamela and Jordan's affidavits
"are to be believed," those statements were made in June 2012, almost
seven years before Wallis filed his petition. (C. 34.) The State also
argued that Wallis had failed to plead sufficient facts indicating that
Pamela and Jordan's affidavits met the requirements in Rule 32.1(e), Ala.
R. Crim. P., and that the claim was meritless. The State attached to its
answer the record from Wallis's direct appeal as well as an affidavit from
Tonya dated April 9, 2019, in which she stated:
"My name is Tonya Wallis. I am the victim in this case.
I was shot in the head by Jon Thomas Wallis.
"The sworn testimony I gave at the jury trial in this case
was the truth.
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"I have reviewed the 'Sworn Affidavit' of Pamela Dimak
dated March 11, 2019, and the 'Sworn Affidavit' of Jordan
Dimak dated March 4, 2019.
"Both of these affidavits are untrue. I did not make the
statements that the Dimaks allege that I made regarding this
incident."
(C. 40.)
On July 30, 2019, Wallis filed a reply to the State's answer and
motion for summary dismissal, arguing that neither Pamela nor Jordan
visited him in prison or wrote to him after his conviction and that,
therefore, he could not have obtained their affidavits earlier, and that he
had filed his petition "one month after finding the newly discovered
evidence." (C. 1029.)
The circuit court appointed counsel to represent Wallis and
scheduled a hearing for November 13, 2019. Counsel filed a motion to
continue the hearing and an amended petition on November 1, 2019. The
circuit court accepted the amended petition and granted the motion to
continue, resetting the hearing for March 2020. In the amended petition,
Wallis alleged that his trial counsel had been ineffective for various
reasons, and he reasserted his newly-discovered-evidence claim. At the
beginning of the amended petition, Wallis alleged:
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"Petitioner, Jon Thomas Wallis, is now and has been
incarcerated in Limestone Department of Corrections in
Harvest, Alabama, since February 23, 2012. Mr. Wallis
contends that it has been impossible for him to adequately
investigate, plead and prove his claims without the assistance
of counsel. As the Alabama Supreme Court has recognized,
'an incarcerated inmate who does not have legal counsel is
obviously hampered in his or her ability to interview
witnesses, to gather records and to investigate factual
questions and to conduct legal research.' Ex parte Jenkins,
972 So. 2d 159, 164 (Ala. 2005). Mr. Wallis contends that the
grounds for this claim were not known and could not have
been ascertained through reasonable diligence until the filing
of his initial claim on March 11, 2019."
(C. 1042-43.) He also alleged the following facts in support of his newly-
discovered-evidence claim:
"[Wallis] spoke with Jordan Nicholas Dimak in the
Limestone County Department of Corrections facility on or
about February 4, 2019, regarding his life sentence for the
attempted murder of Tonya Wallis. Jordan Nicholas Dimak
detailed a conversation that he and his mother, Pamela
Dimak, had with Tonya Wallis shortly after [Wallis]'s
conviction at their home in Colbert County, Alabama.
"[Wallis] immediately requested Jordan Nicholas
Dimak to give a sworn statement outlining his encounter with
Tonya Wallis in June 2012, for Jordan Nicholas Dimak to
contact Pamela Dimak about her encounter with Tonya
Wallis in June 2012 for a sworn, written statement detailing
her conversation with Tonya Wallis.
"Both Jordan Nicholas Dimak and Pamela Dimak
drafted an affidavit unfolding the victim recant of her
testimony from trial, specific reasons for her inconsistent
statements and her motive for being dishonest. The facts
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establish that [Wallis] is innocent of the crime for which he
was convicted or should not have received the sentence that
he received.
"Mr. Wallis is not related in any form to Jordan Nicholas
Dimak, nor his mother Pamela Dimak.
"The statements about [Tonya]'s recantation have a
substantial indicia of reliability. First, the recantation is
consistent with prior allegations of a self-inflicted injury
which was precluded from trial by the State after Florence
Police Department Criminal Investigator Kevin Jackson was
afforded an opportunity to speak with potential witnesses and
a motion later filed to preclude trial counsel from attempting
further contact with said witnesses.[3] Second, [Tonya] was a
co-conspirator with [Wallis] in several unrelated drug
3This is an incomplete, if not inaccurate, statement of what
occurred at trial. Before trial, the State moved in limine to prohibit the
defense from questioning Tonya or other witnesses during trial about
alleged statements she had made that Wallis did not shoot her. In a
deposition taken during Wallis and Tonya's divorce proceedings, Tonya
had been questioned about statements she had allegedly made to certain
individuals that Wallis did not shoot her and she denied having made
any such statements. As a result of that question, the prosecutor asked
a police officer to question the individuals Tonya had been asked about,
and they all told the officer that Tonya had not made any statements
indicating that Wallis did not shoot her. Defense counsel admitted that,
he, too, had questioned the individuals and that they had "indicated that
they didn't have conversations per se with" Tonya, although he alleged
there were some inconsistencies regarding "what's happened, who's
talked to who." (C. 548-49.) The trial court ruled that "[i]t would be
unethical to try to impeach a witness with a prior inconsistent statement
that you don't have a good faith basis" to believe was made, and defense
counsel agreed, stating that he would not "bring up something I can't
prove." (C. 549-50.) The trial court did not, as Wallis alleged in his
amended petition and alleges in his brief on appeal, "preclude trial
counsel from attempting further contact" with the individuals.
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trafficking offenses which was nol prossed on July 19, 2011,
less than two weeks before [Wallis] was indicted for the
attempted murder of [Tonya] in this case. Third, [Tonya] in
fact filed for divorce and custody of she and [Wallis]'s only
child the day after the state nol prossed her drug trafficking
charges and moved the court to transfer her juvenile
proceedings regarding the custody of their child from Colbert
County Juvenile Court to Lauderdale County Juvenile Court.
Finally, while the recantation alone is not new evidence, the
plausible motive for [Tonya] being untruthful regarding the
injuries she sustained on April 27, 2011, is newly discovered
evidence because it offers an explanation for [Tonya]'s failure
to tell law enforcement what really happened the night of the
incident, the facts surrounding [Tonya]'s plausible motive
were not known by [Wallis] or [Wallis's] trial counsel at the
time of the trial or sentencing or in time to file a post-trial
motion pursuant to Rule 24, Alabama Rules of Criminal
Procedure, or in time to be included in any previous collateral
proceeding. [Tonya]'s plausible motive could not have been
discovered by any of those times through the exercise of due
diligence. Most importantly, the facts establish [Wallis]'s
actual innocence.
"In Smith v. State, 745 So. 2d 284 (Ala. Crim. App.
1999), the appellants contended that they established that
there was newly discovered evidence because one of the
victims subsequently stated that his testimony at trial was
false. They argued that B.B. was 'the only witness that
offered direct testimony concerning any acts of sexual abuse
and that, pursuant to M.T., Sr. v. State, 677 So. 2d 1223 (Ala.
Crim. App. 1995), it is an abuse of discretion not to allow a
new trial when a defendant is convicted solely on the
testimony of a recanting witness. As in M.T., Sr., the only
witness account of the events that took place on the night in
question other than [Wallis]'s account is that of [Tonya] in this
present case. The newly discovered evidence which suggests
a plausible motive for [Tonya] to have lied constitutes facts
which establish that [Wallis] is innocent of the crime for which
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he was convicted and is consistent with Mr. Wallis's actual
claim of innocence from the beginning of the case."
(C. 1053-55.) In addition to Pamela and Jordan's affidavits, Wallis
attached to his amended petition two pages from Tonya's medical records
-- records that were introduced into evidence at Wallis's trial and, thus,
known to Wallis -- in which it is stated under "patient notes" that the
gunshot wound to Tonya's head was "possibly accidentally self inflicted"
(C. 1062); the State's motion to nolle pros the criminal case against
Tonya, dated July 11, 2011; and Tonya's petition for divorce and custody,
dated July 12, 2011.
When the COVID-19 pandemic hit in early 2020, the circuit court
placed Wallis's Rule 32 petition on the administrative docket, and the
hearing scheduled for March 2020 was postponed. In February 2022,
Wallis moved to schedule a hearing on his petition, and the circuit court
scheduled a hearing for July 8, 2022. Two days before the scheduled
hearing, Wallis moved to continue the hearing and the circuit court
rescheduled the hearing for November 2022. On July 7, 2022, the State
filed a response to Wallis's amended petition, arguing that both of
Wallis's claims were time-barred by Rule 32.2(c) and were insufficiently
pleaded. Ten minutes after the State electronically filed its response to
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Wallis's amended petition, the circuit court issued an order summarily
dismissing Wallis's petition, finding that Wallis's claims of ineffective
assistance of counsel were time-barred by Rule 32.2(c) and that he had
failed to plead sufficient facts indicating that his newly-discovered-
evidence claim satisfied the requirements in Rule 32.1(e). On August 4,
2022, Wallis filed a postjudgment motion to reconsider, which was
deemed denied on August 8, 2022.4 This appeal followed.
I.
Wallis first contends that the circuit court erred in summarily
dismissing his claim of newly discovered material facts.
Rule 32.1(e) provides:
"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:
"….
4See Loggins v. State, 910 So. 2d 146, 149 (Ala. Crim. App. 2005)
(recognizing that a motion to reconsider is a valid postjudgment motion
in the Rule 32 context but that a circuit court retains jurisdiction to
modify a judgment in Rule 32 proceedings for only 30 days after the
judgment is entered). The 30th day after the circuit court's summary
dismissal of the petition was Saturday, August 6, 2022; therefore, the
circuit court retained jurisdiction until the end of the day on Monday,
August 8, 2022. See Rule 1.3(a), Ala. R. Crim. P.
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"(e) Newly discovered material facts exist which require
that the conviction or sentence be vacated by the court,
because:
"(1) The facts relied upon were not known by the
petitioner or the petitioner's counsel at the time of trial or
sentencing or in time to file a posttrial motion pursuant to
Rule 24, or in time to be included in any previous collateral
proceeding and could not have been discovered by any of those
times through the exercise of reasonable diligence;
"(2) The facts are not merely cumulative to other facts
that were known;
"(3) The facts do not merely amount to impeachment
evidence;
"(4) If the facts had been known at the time of trial or of
sentencing, the result probably would have been different;
and
"(5) The facts establish that the petitioner is innocent of
the crime for which the petitioner was convicted or should not
have received the sentence that the petitioner received."
As noted above, in his original petition, Wallis did nothing more
than attach the affidavits of Pamela and Jordan to the petition without
pleading any specific facts regarding his claim. However, in his amended
petition, Wallis clarified that he was not arguing that Tonya's alleged
recantation of her trial testimony to Pamela and Jordan constituted
newly discovered evidence, but rather, that her statements to Pamela
and Jordan indicated a "plausible motive" for her to lie about Wallis
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shooting her, i.e., to avoid prosecution for drug charges against her and
to obtain custody of their son, and that these motives constituted newly
discovered evidence. He reasserts in his brief on appeal that Tonya's
alleged motive to lie, not her alleged recantation of her trial testimony,
was newly discovered, and he maintains this allegedly newly-discovered
motive satisfies each of the requirements in Rule 32.1(e). We disagree.
Initially, we point out that Wallis includes a plethora of additional
facts in his brief on appeal that were not included in his petition or in his
amended petition. However, in determining whether a postconviction
claim was sufficiently pleaded, we consider only the facts alleged in the
petition and any amendments thereto. Therefore, the additional facts
Wallis asserts for the first time on appeal are not properly before this
Court for consideration. See, e.g., Bearden v. State, 825 So. 2d 868, 872
(Ala. Crim. App. 2001) ("Although Bearden attempts to include more
specific facts regarding his claims of ineffective assistance of counsel in
his brief to this Court, those allegations are not properly before this Court
for review because Bearden did not include them in his original petition
before the circuit court.")
In his amended petition, Wallis made a bare and conclusory
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allegation that, because he had been in prison since he was sentenced in
February 2012, he did not know that Tonya had a "plausible motive" to
lie about Wallis shooting her, and that he could not have ascertained that
motive through the exercise of reasonable diligence until he spoke with
Jordan in prison in February 2019 and learned that Tonya had disclosed
her motive to Pamela and Jordan. Setting aside the fact that
imprisonment is not itself sufficient to satisfy the requirement in Rule
32.1(e)(1), Wallis apparently believes that he could not have ascertained
Tonya's "plausible motive" until Tonya openly admitted that motive.
However, Wallis attached to his petition the State's motion to nolle pros
the criminal charge against Tonya and Tonya's petition for divorce and
custody, both of which were filed in July 2011, five months before his
trial, and on which Wallis relies to support his theory of Tonya's motive
to lie. Wallis did not allege in his petition or amended petition that he
did not know before his trial that the criminal charge against Tonya had
been dropped or that she had petitioned for divorce and custody of their
child, nor did he allege any facts indicating why he could not have
ascertained from these actions (without the alleged admission by Tonya)
and Tonya's medical records, wherein it was stated that her gunshot
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wound was possibly self-inflicted, that Tonya may have had a "plausible
motive" to lie about him shooting her. Therefore, Wallis failed to plead
sufficient facts to satisfy the requirement in Rule 32.1(e)(1).
Moreover, Wallis alleged no facts in his petition indicating that
Tonya's alleged "plausible motive" to lie could be considered anything
other than impeachment evidence. As the Alabama Supreme Court has
explained:
" ' "Impeaching testimony" is that designed to
discredit a witness, or to reduce the effectiveness
of his testimony by bringing forth evidence to show
why faith should not be accorded his testimony.
[Citation omitted.] Evidence is "impeaching" so as
to bar a new trial if it is outside the evidence
already given and impeaches that evidence by
attacking the character, motives, integrity, or
veracity of the witness who gave the testimony.'
"Shepherd v. Southern Ry., 288 Ala. 50, 60-61, 256 So. 2d 883,
892 (1970).
"Newly discovered evidence 'which merely tends to
discredit an adverse party or his witnesses will not avail as a
ground for a new trial, "as such testimony may be discovered
in almost every case, and there must be an end to litigation." '
Fries v. Acme White Lead & Color Works, 201 Ala. 613, 615,
79 So. 45, 47 (1918)."
Talley v. Kellogg Co., 546 So. 2d 385, 388 (Ala. 1989) (emphasis added).
Therefore, Wallis also failed to plead sufficient facts to satisfy the
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requirement in Rule 32.1(e)(3).
Because all five requirements in Rule 32.1(e) must be satisfied to
establish newly discovered evidence and because Wallis failed to plead
sufficient facts to establish at least two of the requirements, his newly-
discovered-evidence claim is, as the circuit court found, insufficiently
pleaded.
II.
Wallis also contends that the circuit court erred in summarily
dismissing his claims of ineffective assistance of counsel. He argues, as
he did in his postjudgment motion, that Rule 32.2(c) does not apply to
claims of ineffective assistance of counsel but, rather, that Rule 32.2(d)
governs the "time limits for a Rule 32 petition based on ineffective
assistance of counsel" and that "the time limit in Rule 32.2(c) should not
apply when Rule 32.2(d) specifically applies to the situation." (Wallis's
brief, p. 30.) He also argues that he is entitled to the benefit of equitable
tolling.
Rule 32.2(d) provides:
"Any claim that counsel was ineffective must be raised
as soon as practicable, either at trial, on direct appeal, or in
the first Rule 32 petition, whichever is applicable. In no event
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can relief be granted on a claim of ineffective assistance of
trial or appellate counsel raised in a successive petition."
Rule 32.2(d) contains no time limit for raising claims of ineffective
assistance of counsel in a Rule 32 petition. It requires the claims to be
raised as soon as practicable, and at the latest in the first Rule 32
petition, but it does not specify when the first Rule 32 petition must be
filed. Therefore, Rule 32.2(d) does not supplant the limitations period set
out in Rule 32.2(c), which provides, in relevant part:
"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, Ala. R. App. P. …"
Claims of ineffective assistance of counsel are constitutional claims under
Rule 32.1(a), and Rule 32.2(c) is clear and unambiguous that such claims
must be raised within one year of the issuance of the certificate of
judgment, regardless of the additional preclusion applicable to such
claims in Rule 32.2(d). In this case, Wallis filed his petition almost six
years after this Court issued the certificate of judgment finalizing his
conviction and sentence.
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As for Wallis's argument that he was entitled to the benefit of
equitable tolling:
"It is well settled that equitable tolling of the limitations
period in Rule 32.2(c) 'is available in extraordinary
circumstances that are beyond the petitioner's control and
that are unavoidable even with the exercise of diligence.' Ex
parte Ward, 46 So. 3d 888, 897 (Ala. 2007). In other words, a
Rule 32 petitioner is entitled to equitable tolling of the
limitations period in Rule 32.2(c) if extraordinary
circumstances beyond the petitioner's control prevented the
petitioner from timely filing his or her Rule 32 petition despite
the petitioner's exercise of diligence. See, e.g., Helton v.
Secretary for Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir.
2001) ('Equitable tolling can be applied ... when
"extraordinary circumstances" have worked to prevent an
otherwise diligent petitioner from timely filing his petition.');
and Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)
(noting that a habeas corpus petitioner is entitled to equitable
tolling if he or she establishes an 'extraordinary circumstance
beyond his [or her] control that prevented him [or her] from
complying with the statutory time limit'). 'Because equitable
tolling is "an extraordinary remedy," it "is limited to rare and
exceptional circumstances" and "typically applied sparingly." '
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009)
(quoting Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir.
2005), aff'd, 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924(2007)). Moreover, '[b]ecause the limitations provision is
mandatory and applies in all but the most extraordinary of
circumstances, when a petition is time-barred on its face the
petitioner bears the burden of demonstrating in his petition
that there are such extraordinary circumstances justifying
the application of the doctrine of equitable tolling.' Ex parte
Ward, 46 So. 3d at 897. '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,
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may be summarily dismissed without a hearing.' Id. at 897-
98."
Kuenzel v. State, 204 So. 3d 910, 916-17 (Ala. Crim. App. 2015).
Wallis argues that, "as in Kuenzel, [he] did not specifically assert
equitable tolling as a defense in his Amended Petition …, [but] he
'attempted in his petition, albeit vaguely, to assert the doctrine of
equitable tolling' in paragraphs five through eight of his Amended
Petition." (Wallis's brief, p. 32.) Paragraphs five through eight in
Wallis's amended petition appear in the section of his petition raising his
various claims of ineffective assistance of counsel and read:
"5. Trial counsel filed a motion for funds to hire an
investigator to aid in the preparation of his defense stating in
his motion that he 'does not have the expertise in criminal
investigation work to investigate the facts and witnesses
surrounding the alleged crime with which [Wallis] is charged'
and 'does not physically have the time to interview all the
potential witnesses that will be essential to providing [Wallis]
with an adequate defense' less than one week before Mr.
Wallis's trial began. The court gave the duty to investigate
real meaning: 'Reasonable performance of counsel includes
an adequate investigation of the facts of the case,
consideration of viable theories and the development of
evidence to support those theories. Counsel has a "duty … to
investigate all witnesses who alleged possessed knowledge
concerning [the defendant's] guilt or innocence." ' (emphasis
added) Lawrence v. Armontrout, 900 F. 2d 127, 130 (8th Cir.
1990); Wade v. Armontrout, 798 F. 2d 304, 307 (8th Cir. 1986)
(finding that defense counsel's failure to investigate was not
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the result of strategy or a reasonable decision not to
investigate, but rather [stemmed] from lack of preparation).
"6. Trial counsel filed a motion for funds to hire an
investigator, Mike Jemison, to aid in the preparation of his
defense on May 12, 2011. Trial counsel only communicated
with [the] investigator approximately 2.4 hours between May
4, 2011, and June 27, 2011; however, a majority of the
investigator's work (approximately 23.75 hours) on the case
took place between June 28, 2011, and November 14, 2011.
There is no record of trial counsel communicating with the
investigator after June 28, 2011.
"7. Because trial counsel admitted that he does not have the
expertise in criminal investigation work to investigate facts
and witnesses surrounding the alleged crime with which
[Wallis] was charged, it is reasonable to believe that trial
counsel's failure to investigate and/or utilize the services
provided through the court to hire an investigator, resulted in
material evidence that could have been discovered and would
have provided information essential to developing theories of
mitigation at trial.
"8. Trial counsel's performance was clearly deficient whereas
he made errors so serious that counsel was not functioning as
the 'counsel' guaranteed the defendant by the Sixth
Amendment."
(C. 1047-49.)
The above paragraphs clearly assert a claim of ineffective
assistance of counsel, but in no way, shape, or form can they be
reasonably construed as asserting a claim of equitable tolling. Unlike
Kuenzel, in which the petitioner asserted that he did not raise his
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postconviction claims earlier because he was litigating other claims in
federal court and argued that the State would not be prejudiced by
allowing him to present the claims in an untimely fashion, Wallis
asserted no facts whatsoever in the above paragraphs explaining why he
waited almost six years after his conviction and sentence were final to
raise his claims of ineffective assistance of counsel. The only facts he
alleged concerned his trial counsel's actions before Wallis's trial.
That being said, as noted above, Wallis alleged at the beginning of
his amended petition that he had been in prison since he was sentenced
in February 2012, thus making it "impossible" for him to have
ascertained the claims through the exercise of reasonable diligence before
he filed his petition in February 2019. (C. 1043.) To the extent that this
allegation could be liberally construed as an assertion of equitable tolling,
" 'the difficulties of prison life are not extraordinary circumstances
warranting equitable tolling.' " Munt v. State, 984 N.W.2d 242, 248-49
(Minn. 2023) (quoting Roby v. State, 808 N.W.2d 20, 30 (Minn. 2011)).
"Since equitable tolling is only appropriate upon a showing of
'extraordinary circumstances,' ... the 'commonly shared' limitations of
prison life experienced by prisoners at large cannot be a basis for
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equitable tolling." Peterson v. Green, (No. GJH-16-1148, July 6, 2018)
(S.D. Md. 2018) (citation omitted) (not reported in Fed. Supp.). See also
Moreland v. Eplett, 18 F.4th 261, 271 (7th Cir. 2021) (" '[C]ommon parts
of prison life,' taken alone, are … not considered 'extraordinary.' "
(citation omitted)); and Cisco v. United States, (No. 3:15-CR-00007)
(S.D.W.V. 2018) (not reported in Fed. Supp.) ("[O]rdinary aspects of
prison life, such as restricted access to legal reference materials or
assistance, do not provide a basis for equitable tolling.").
Wallis was not entitled to equitable tolling, and his claims of
ineffective assistance of counsel are, as the circuit court found, time-
barred by Rule 32.2(c).
III.
Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to
summarily dismiss a petitioner's Rule 32 petition
"[i]f the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or that no
material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would
be served by any further proceedings ...."
See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);
Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.
21
CR-2022-0984
State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992). Because Wallis's
claims were either insufficiently pleaded or time-barred by Rule 32.2(c),
summary disposition of Wallis's Rule 32 petition was appropriate.
Based on the foregoing, the judgment of the circuit court is
affirmed.
AFFIRMED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.
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