REL:08/29/2014




Notice: This opinion is subject to formal revision before publication in the advance
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the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121399
                             ____________________

                       Ex parte William Keith Robey

                       PETITION FOR WRIT OF MANDAMUS

                          (In re: State of Alabama

                                           v.

                             William Keith Robey)

     (Jefferson Circuit Court, CC-95-4454 and CC-95-4455)




PER CURIAM.

      PETITION DENIED. NO OPINION.
1121399

     Stuart,   Bolin,   Parker,   Shaw,   Wise,   and   Bryan,   JJ.,
concur.

    Moore, C.J., and Murdock, J., dissent.

    Main, J., recuses himself.




                                  2
1121399

MOORE, Chief Justice (dissenting).

    William Keith Robey petitioned this Court for a writ of

mandamus to order Judge Alfred Bahakel, Jefferson Circuit

Court, to grant Robey's application for in forma pauperis

("IFP") status1 and to waive prepayment of the filing fee for

a Rule 32, Ala. R. Crim. P., petition seeking postconviction

relief. This Court today denies Robey's petition. For the

reasons stated below, I dissent.

               I. Facts and Procedural History

    On June 13, 2013, Robey filed his fourth Rule 32 petition

accompanied by an application for IFP status. Attached to the

application was a report of the activity in Robey's inmate

account for the preceding 12 months that showed total deposits

of $415 or an average of $34.58 per month. On June 19, 2013,

Judge Bahakel summarily denied Robey's application for IFP

status. Robey then filed a petition for a writ of mandamus

with the Court of Criminal Appeals to compel the circuit court

to grant him IFP status. In its order of August 23, 2013,




    1
     "In forma pauperis" means "[i]n the manner of an indigent
who is permitted to disregard filing fees and court costs."
Black's Law Dictionary 899 (10th ed. 2014).
                              3
1121399

denying    Robey's   petition,   the   Court    of   Criminal   Appeals

stated:

         "Currently, the fee for filing a postconviction
    petition in the Jefferson Circuit Court is $206.
    Robey's inmate account summary shows that in the 12
    months preceding the filing of the Rule 32 petition
    he had deposits to his inmate account in the amount
    of $415. [Robey] could have saved the money to pay
    the filing fee and is not indigent. See Ex parte
    Wyre, 74 So. 3d 479, 482 (Ala. Crim. App. 2011)."

    Robey then petitioned this Court for a writ of mandamus,

arguing that Ex parte Wyre, 74 So. 3d 479 (Ala. Crim. App.

2011), upon which the Court of Criminal Appeals relied in

denying his mandamus petition, conflicted with previous cases

that determined an inmate's indigency as of the date of the

filing of a Rule 32 petition and did not use a retrospective

"could-have-saved" rule. See Ex parte Beavers, 779 So. 2d

1223, 1224-25 (Ala. 2000); Ex parte Dozier, 827 So. 2d 774,

776 (Ala. 2002). He also argued that the rule in Wyre denied

indigent    prisoners   access   to    the     courts   and   was   thus

unconstitutional. On November 27, 2013, we ordered the circuit

judge and the State of Alabama to answer Robey's petition.

    Because Judge Bahakel had retired early in 2013, Judge

Bill Cole, who assumed Judge Bahakel's docket, responded to

our order, stating, in part:

                                  4
1121399

          "The undersigned is aware that individuals
     frequently abuse the privilege of being able to file
     a Rule 32 Petition. If inmates are allowed to spend
     any money they receive knowing that they can then
     file a Rule 32 without cost, they would probably be
     more willing to file a frivolous Rule 32. These
     petitions can require the State of Alabama and the
     judges presiding over the case to spend several
     hours ruling on an issue that has already been
     raised or that the petitioner may know is without
     merit. To abandon any consideration of the amount of
     money that has been in an inmate's prison account
     during the last year could cause abuse of the
     important relief individuals are allowed though Rule
     32 of the Alabama Rules of Criminal Procedure."

                   II. Standard of Review

     "A writ of mandamus is an extraordinary remedy that

requires the showing of: (1) a clear legal right in the

petitioner to the order sought; (2) an imperative duty on the

respondent to perform, accompanied by a refusal to do so; (3)

the lack of another adequate remedy; and (4) the properly

invoked jurisdiction of the court." Ex parte McNaughton, 728

So. 2d 592, 594 (Ala. 1998). A trial court's refusal to grant

IFP status to an indigent prisoner seeking postconviction

relief makes it impossible for the prisoner to file a Rule 32

petition. "[I]n the absence of a docket fee ... or an approved

in   forma   pauperis    declaration,    the   petition     for

[postconviction] review was never properly before the trial


                              5
1121399

court." Goldsmith v. State, 709 So. 2d 1352, 1352-53 (Ala.

Crim. App. 1997). Because "refusal of the circuit court to

accept a petition is not a final judgment," id. at 1353, the

remedy of appeal is unavailable.

    Thus, Robey satisfies the third part of the mandamus

test: the lack of another adequate remedy. For this reason,

"mandamus, and not appeal, is the proper method by which to

compel the circuit court to proceed on an in forma pauperis

petition." Goldsmith, 709 So. 2d at 1353. Robey properly

invoked the jurisdiction of this Court by timely filing a

petition for a writ of mandamus directed to the circuit court

within 14 days of the decision of the Court of Criminal

Appeals. Rule 21(e), Ala. R. App. P. The only issue remaining

is whether Robey had a clear legal right to IFP status that

the circuit court had an imperative duty to recognize.

                        III. Analysis

    In Wyre, the Court of Criminal Appeals held that an

inmate who had "more than twice the amount" necessary to pay

a filing fee deposited in his inmate account in the previous

12 months was not indigent and that "an inmate who has

appreciably more than the amount necessary to pay a filing fee


                              6
1121399

deposited in his inmate account in the 12 months preceding the

filing of an IFP request is not indigent as that term is

defined in Rule 6.3(a), Ala. R. Crim. P." 74 So. 3d at 482.

The Court of Criminal Appeals in dicta has encouraged trial

courts to use the Wyre rule to deny IFP status to Rule 32

petitioners. See State v. Thomas, [CR-10-1401, May 25, 2012]

___ So. 3d ___ n.3 (Ala. Crim. App. 2012); Yocum v. State, 107

So. 3d 219 n.1 (Ala. Crim. App. 2011).

    The quantity and often questionable quality of Rule 32

petitions is a valid concern for the judiciary. The Wyre rule,

however,    is   inconsistent     with       precedent      of     this   Court

governing the methodology for determining prisoner indigency.

Additionally,      alternative      remedies          are     available      to

effectively deter frivolous Rule 32 filings without closing

the courthouse door on prisoners who lack the current means to

pay a filing fee.

A. The Volume of Postconviction Litigation

    Judge    Cole's     concern   about       reducing       the    number   of

meritless   Rule   32   petitions       is   valid.    "We    do    not   favor

continuous, repetitious or frivolous petitions on matters

which have been finally adjudicated." Allison v. State, 277


                                    7
1121399

Ala. 423, 424, 171 So. 2d 239, 239 (1965). See also Ex parte

Coleman, 728 So. 2d 703, 705 (Ala. 1998) ("The barrage of

postconviction petitions has caused numerous delays in the

judicial process and problems in enforcing judgments.").

    The challenge of managing a flood of often questionable

prisoner litigation is not new. In 1961, the Alabama Court of

Appeals stated:

    "We are now receiving a large number of various
    sorts of documents from prisoners confined in the
    penitentiaries of this State, seeking extraordinary
    writs. Apparently encouraged by recent decisions of
    the Federal courts, they do not hesitate to make the
    most   extravagant   claims    of   deprivation   of
    constitutional rights in their trials in the courts
    of this State. It is often difficult for the court
    below and for this court to determine just what
    relief these documents are seeking, other than the
    authors want out of the penitentiary."

Warden v. State, 41 Ala. App. 449, 450, 134 So. 2d 783, 784

(1961). This Court, noting that "[f]inality of a criminal

judgment and sentence today is as outmoded as the Model-T,"

expressed concern at the heavy toll this "mockery of our

judicial system" exacted. Cooper v. Wiman, 273 Ala. 699, 700,

145 So. 2d 216, 217 (1962).

    "The petitioners take great comfort in the fact that
    no matter how frivolous their allegations or how
    utterly deficient their pleadings may be, the state
    must respond to these ofttimes unintelligible

                              8
1121399

    pleadings, letters or memorandums, and/or proceed to
    costly and time-consuming hearings. The petitioners
    have nothing to lose, for they know that the very
    least they can obtain is a day away from their
    prison surroundings."

273 Ala. at 701, 145 So. 2d at 217.2

B. Determining Prisoner Indigency

    Effective January 1, 1991, this Court adopted the Alabama

Rules of Criminal Procedure, which defined an indigent as "a

person who is financially unable to pay for his or her

defense." Rule 6.3(a), Ala. R. Crim. P. An inmate claiming

indigency   could   seek   a   waiver   of   the   filing   fee   for   a

postconviction petition by attaching to the petition an "In

Forma Pauperis Declaration." At the time of the adoption of

the Alabama Rules of Criminal Procedure, Rule 32.6(a) read as

follows, in pertinent part:

    "In all such cases, the petition shall also be
    accompanied by a certificate of the warden or other
    appropriate officer of the institution in which the
    petitioner is confined as to the amount of money or
    securities on deposit to the petitioner's credit in
    any account in the institution, which certificate
    may be considered by the court in acting upon his
    application for leave to proceed in forma pauperis."


    2
     Currently, Rule 32 petitions constitute 24% of the cases
filed in the Alabama Court of Criminal Appeals -- about 500
filings per year. Alabama Unified Judicial System Fiscal Year
2012 Annual Report and Statistics, at 9.
                                  9
1121399

The appendix to Rule 32 elaborated at paragraph (7):

      "If you do not have the necessary fee, you may
      request permission to proceed in forma pauperis, in
      which event you must complete the declaration at the
      end of this form, setting forth information
      establishing your inability to pay the fees and
      costs or give security therefor. Your declaration
      must include financial information relating to the
      twelve (12) months preceding the filing of this
      petition."

The IFP declaration requires the inmate to disclose the "total

value" of the inmate's prison account and the amount of money

received from every source "during the past twelve months." At

the end of the IFP declaration is a certificate for a prison

official to complete as to the amount in the prisoner's

account at the "institution where he is confined." Appendix to

Rule 32. If the trial court grants the petitioner IFP status,

the   clerk   of   court   "shall    file   the   petition"   without

prepayment of the filing fee. Rule 32.6(a).

      During the first decade that the IFP procedure of Rule

32.6(a) was in effect, prisoners complained that the trial

court, despite a demonstration of indigency, refused to grant

IFP status. The Court of Criminal Appeals was responsive to

these complaints. See Lucas v. State, 597 So. 2d 759, 760

(Ala. Crim. App. 1992) (reversing denial of IFP status when


                                    10
1121399

"there has never been any more than $31.47 in the petitioner's

account at any one time" and the filing fee was $95); Robinson

v. State, 629 So. 2d 5, 5 (Ala. Crim. App. 1993) (reversing

denial of IFP status when prisoner's IFP declaration "states

that the only money available to the appellant is $6.25, which

is in his prison account"); Stafford v. State, 647 So. 2d 102

(Ala. Crim. App. 1994) (reversing denial of IFP status when

filing fee was $110, prisoner's account contained $91.83 at

the time of filing, the highest monthly balance in the account

in the previous nine months was $104.33, and the average

balance for that period was $63.15); Griggs v. State, 659 So.

2d 1044 (Ala. Crim. App. 1995) (reversing denial of IFP status

when prisoner had only $1.10 in his inmate account when he

filed his Rule 32 petition); Powell v. State, 674 So. 2d 1259,

1260 (Ala. Crim. App. 1995) (reversing denial of IFP status

when   prisoner   had   $1.00   in   his   prison   account   when   he

attempted to file the petition, the filing fee was $110, and

thus "it appear[ed] that the appellant [was] indigent");

Hawkins v. State, 675 So. 2d 1359 (Ala. Crim. App. 1995)

(reversing denial of IFP status because "[f]rom examining the

appellant's prison account balances, we conclude that the


                                 11
1121399

appellant is indigent"); Malone v. State, 687 So. 2d 218 (Ala.

Crim. App. 1996) (reversing denial of IFP status when prisoner

showed a balance of $15.04 in his prison account on the filing

date, the maximum balance in the account over the previous

four months was $60.21, and the filing fee was $110); Cummings

v. State, 687 So. 2d 1290 (Ala. Crim. App. 1996) (reversing

denial of IFP status when prisoner had $31.49 in his prison

account when he filed the petition and the filing fee was

$110); Ex parte Coleman, supra (reversing denial of IFP status

where certificate attached to IFP declaration showed $.29 in

inmate's prison account); Ex parte Ferrell, 819 So. 2d 83

(Ala.   Crim.    App.   2001)   (finding    that   prisoner   satisfied

definition of indigency in Rule 6.3(a) when he had a balance

of $.17 in his prison account on the filing date, the maximum

balance in the account in prior months was $40, and the filing

fee was $140); and Ex parte Spence, 819 So. 2d 106, 106 (Ala.

Crim. App. 2001) (ordering the trial court to allow the

petitioner      "to   file   his   Rule    32   petition   without   the

prepayment of a filing fee" where his inmate account had $2.06

on deposit at the time of filing).




                                    12
1121399

    During     that    period    the    Court   of   Criminal     Appeals

uniformly granted IFP status when the balance in an inmate's

prison account on the date the Rule 32 petition was filed was

less than the filing fee and the prisoner's account balance

had never exceeded the filing fee in previous months. The

opinions of this Court affirmed these principles. In Ex parte

Hurth, 764 So. 2d 1272 (Ala. 2000), the trial court relied on

a "could-have-saved" argument to deny the petitioner IFP

status: "'The Court has reviewed the petitioner's prison fund.

The defendant can save the usual [amount] deposited to his

account until he has sufficient funds to pay a filing fee in

this case. Petition to proceed in forma pauperis is denied.'"

Hurth, 764 So. 2d at 1273. Although Hurth's account statement

showed an average monthly deposit of $23.57, this Court did

not agree with the trial court that Hurth was not indigent

because he "could have" saved that amount for six months to

accumulate the $140 filing fee. Instead we ordered the trial

court   to   approve   Hurth's    IFP   application.    Our     indigency

analysis relied primarily upon Hurth's financial position at

the time he filed his Rule 32 petition.

    "[T]he facts before this Court indicate that Hurth
    was indigent when he filed his petition for

                                   13
1121399

    post-conviction relief. See, e.g., Malone v. State,
    687 So. 2d 218, 219 (Ala. Crim. App. 1996) (holding
    that the petitioner was indigent -- his prison fund
    had shown a balance of $15.04 on the day before he
    filed his Rule 32 petition, and his account had
    never contained more than $60.21 during the four
    months before he filed his petition)."

Hurth, 764 So. 2d at 1274.

    In Ex parte Beavers, supra, the prisoner's sister sent

him $10 per week, his account balance at time he filed his

Rule 32 petition was zero, and the filing fee was $140.

Although Beavers theoretically could have saved the $140

filing    fee   from   deposits   received   in   prior   months,   we

nonetheless reversed the trial court's order denying him IFP

status.

    "Although Beavers's in forma pauperis declaration
    indicated that his sister sent him $10 per week, the
    accompanying certificate indicated that he had a
    zero balance in his prison account on the day he
    filed his Rule 32 petition. Thus, the evidence
    before us suggests that Beavers was, in fact,
    indigent."

779 So. 2d at 1224-25. Finally, in Ex parte Dozier, 827 So. 2d

774, 776 (Ala. 2002), we held that a petitioner who "had a

zero balance in his prison account when he filed his Rule 32

petition" was unable to pay a $140 filing fee despite the

fact, as the dissent pointed out, that the prisoner had spent


                                  14
1121399

over $100 on canteen sales in each of the preceding two

months. In Dozier we cited Hurth and Beavers and three similar

opinions of the Court of Criminal Appeals -- Ferrell, Coleman,

and Malone.

    In Hurth, Beavers, and Dozier, we also stressed that

refusing to accept Rule 32 filings from prisoners who, at the

time of filing, lacked the funds to pay a filing fee raised

troubling constitutional questions. In Hurth we stated:

    "'To impose any financial consideration between an
    indigent prisoner and the exercise of his right to
    sue for his liberty is to deny that prisoner equal
    protection of the laws.' Hoppins v. State, 451 So.
    2d 363, 364 (Ala. Crim. App.1982) (citing Smith v.
    Bennett, 365 U.S. 708, 81 S. Ct. 895, 6 L. Ed. 2d 39
    (1961)). 'While habeas corpus may, of course, be
    found to be a civil action for procedural purposes,
    it does not follow that its availability in testing
    the State's right to detain an indigent prisoner may
    be subject to the payment of a filing fee.' Smith,
    365 U.S. at 712, 81 S. Ct. 895. (Citation omitted.)
    '[I]n order to prevent "effectively foreclosed
    access" [to the courts], indigent prisoners must be
    allowed to file appeals and habeas corpus petitions
    without payment of docket fees.' Bounds v. Smith,
    430 U.S. 817, 822, 97 S. Ct. 1491, 52 L. Ed.2d 72
    (1977)."

Hurth, 764 So. 2d at 1274. In Beavers, we repeated the

quotations in Hurth from Hoppins v. State, 451 So. 2d 363, 364

(Ala. Crim. App. 1982), and Bounds v. Smith 430 U.S. 817



                             15
1121399

(1977). 779 So. 2d at 1224. In Dozier, we quoted Beavers'

statement of these principles. 827 So. 2d at 775-76.

     Thus, Robey is quite correct in arguing that the "could-

have-saved" rule adopted in 2011 in Wyre directly conflicts

with earlier cases decided both by this Court and by the Court

of Criminal Appeals. The attorney general's brief does not

dispute this point.

     Effective August 1, 2002, this Court amended Rule 32.6(a)

to   require   that   the    prison    certificate         accompanying      the

inmate's IFP declaration must state the amount on deposit "for

the previous twelve (12) months." The addition of this phrase

to the rule, however, cannot be viewed as authorizing the

Court of Criminal Appeals to abandon the previous practice of

determining indigency by comparing the filing fee with the

balance in the inmate's account on the date of filing or the

maximum     balance   in    previous       months.    A    year    after     the

amendment, the Court of Criminal Appeals denied IFP status to

an inmate facing a $149 filing fee whose prison account showed

"monthly balances as high as $185." Ex parte Holley, 883 So.

2d   266,   269   (Ala.     Crim.   App.     2003).       That    decision   is

consistent with the prior practice of comparing the filing fee


                                      16
1121399

with the maximum monthly balance in an inmate's account.

Holley departed from precedent, however, in not also placing

significant weight on the balance in the inmate's account at

the time of the filing of the Rule 32 petition.

    The maximum-monthly-balance rule, however, is a far cry

from the 2011 decision in Wyre to base the determination of

indigency on a comparison of the filing fee with the total

deposits for the 12 months preceding the filing. The annual

deposit total, for example, is 12 times the average monthly

deposit. Using Wyre's annual-sum-of-deposits calculation as

the threshold for indigency means that a prisoner like Robey,

who had an average monthly income of $34.58, would not be

considered indigent though he had only $27.45 in his account

at the time of filing and was faced with the payment of a $206

filing fee, which represented almost six times his average

monthly deposit. Wyre's drastic alteration of the method for

calculating indigency is inconsistent with governing precedent

of this Court interpreting Rule 6.3(a) and Rule 32.6(a).3


    3
     Requiring a prisoner like Robey to save every penny of
his income for six months to prepay a filing fee could also
preclude access to the courts by allowing the statute of
limitations for filing a Rule 32 petition to expire while the
prisoner was saving for the filing fee. Rule 32.2(c), Ala. R.
                             17
1121399

C. Alternative Means of Deterring Meritless Filings

    Judge Cole's concern that allowing indigent prisoners "to

file a Rule 32 without cost" will overwhelm the courts with

meritless filings may be alleviated under current law without

denying equal protection of the laws to poor prisoners or

abandoning the precedent of Hurth, Beavers, and Dozier. Since

1975 Alabama law has provided for the imposition of indigent

filing fees after the fact. "The docket fee may be waived

initially and taxed as costs at the conclusion of the case if

the court finds that payment of the fee will constitute a

substantial hardship." § 12-19-70(b), Ala. Code 1975. See Ex

parte Coleman, 728 So. 2d at 707 (noting that a trial court

"may protect itself from prolific litigants" by "tax[ing] the

fee as costs at the end of the proceeding") (citing § 12-19-

70(b)); Ex parte Beavers, 779 So. 2d at 1224 (noting the

provision in § 12-19-70(b) for an initial waiver of the docket

fee for an indigent prisoner followed by an imposition of the

fee at the conclusion of the case); Castillo v. State, 786 So.

2d 1147, 1149 (Ala. Crim. App. 2000) (noting that "the court



Crim. P. For a discussion of this point, see Ex parte Johnson,
123 So. 3d 953, 954 (Ala. 2013) (Moore, C.J., dissenting).
                             18
1121399

may properly tax the cost of the filing fee to the petitioner

at the conclusion of the case, even if the petitioner has

previously been determined to be indigent"); and Neal v.

State, 803 So. 2d 586, 588 (Ala. Crim. App. 2001) (noting that

"docket fees can be waived for indigent petitioners because of

the processes that allow an indigent inmate to repay those

costs").

    In 2002 this Court amended Rule 32.6(a) to add language

allowing for after-the-fact recovery of indigent filing fees:4

    "If the application to proceed in forma pauperis is
    granted, the filing fee shall be waived. If, upon
    final disposition of the petition, the court finds
    that all of the claims for relief are precluded for
    any of the reasons stated in Rule 32.2, it may
    assess the filing fee, or any portion thereof, and
    order the correctional institution having custody of
    the petitioner to withhold 50% of all moneys the
    institution then has on deposit for the petitioner,
    or receives in the future for the petitioner, until
    the filing fee that has been assessed by the court
    has been collected and paid in full."

(Emphasis added.) Thus, a prisoner who files a meritless

petition is subject to a lien on his inmate account of 50% of

future deposits until the filing fee is paid in full. Section

12-19-70(b) and the more detailed recovery language of Rule


    4
     The language was subsequently moved to Rule 32.7(e), Ala.
R. Crim. P. See discussion infra.
                             19
1121399

32.6(a) work together to provide that an indigent inmate who

files a meritless petition is liable for repayment of the

filing fee from his prison account. See Clemons v. State, 55

So. 3d 314, 334 & n.8 (Ala. Crim. App. 2003) (noting that

"[s]ection 12-19-70, Ala. Code 1975, applies to Rule 32

petitions" and quoting from the recovery section of Rule

32.6(a)). Effective November 28, 2012, the recovery language

in Rule 32.6(a) was moved to Rule 32.7(e), Ala. R. Crim. P.

("Assessment of Filing Fee"). In addition to the preclusion

grounds   of   Rule   32.2,   the    new   Rule   32.7(e)   added   two

additional grounds for recovery of the filing fee, namely that

the claims for relief "are lacking in specificity as required

by Rule 32.6(b), or fail to state a claim of law or fact that

is meritorious."

    A petitioner whose claim survives summary dismissal under

Rule 32.7(d), Ala. R. Crim. P., and is therefore entitled to

an evidentiary hearing is not subject to recovery of the

filing fee under Rule 32.7(e). Thus, a lien is placed on an

indigent prisoner's account for recovery of a filing fee only

if the petition itself is meritless. Section 12-19-70 and Rule

32.7(e), if implemented by the trial courts, provide a strong


                                    20
1121399

disincentive      for   prisoners    to   file   frivolous   Rule   32

petitions. The practice of denying IFP status to prisoners who

currently are financially unable to pay a filing fee, but who

theoretically could have saved the money for the fee over the

previous year, seems incompatible with the plain language of

Rule 6.3(a). The Wyre rule also places an obstacle in the path

of poor prisoners that those with more assets do not face,

thus    raising   the   constitutional    issues   that   this   Court

identified in Hurth, Beavers, and Dozier.

       In 1996, concerned about the rising tide of prisoner

litigation, Congress passed the Prison Litigation Reform Act

("PLRA"). A section of the PLRA, codified at 28 U.S.C. § 1915,

requires that an indigent prisoner, "when funds exist," pay

20% of the balance in the inmate's account as a down payment

on a filing fee. 28 U.S.C. § 1915(b)(1). Twenty per cent of

the funds in the inmate's prison account are requisitioned

every month thereafter, so long as the balance in the account

is above $10, until the fee is paid in full. 28 U.S.C. §

1915(b)(2). Rather than foreclosing an indigent inmate from

filing a petition until the full filing fee has been saved,

the PLRA, like Rule 32.7(e), allows recovery of the fee after


                                    21
1121399

the conclusion of the case, thus eliminating access-to-the-

courts and equal-protection issues.5 The PLRA specifically

emphasizes that "[i]n no event shall a prisoner be prohibited

from bringing a civil action ... for the reason that the

prisoner has no assets and no means by which to pay the

initial partial filing fee." 28 U.S.C. § 1915(b)(4). The

federal policy of allowing indigents freely to file petitions

and then providing for recovery of the filing fee by an

assessment against the inmate's account at the conclusion of

the case had a noticeable deterrent effect. "The [PLRA] has

been highly successful in reducing litigation, triggering a

forty-three percent decline over five years, notwithstanding

the   simultaneous   twenty-three   percent   increase   in   the




      5
     The attorney general argues that federal law requires a
showing that a prisoner's petition has merit before IFP status
will be granted on an access-to-the-courts claim. State's
brief, at 10-14. Under Alabama law, however, a trial court
does not have subject-matter jurisdiction to consider the
merits of a Rule 32 petition until the IFP issue has been
resolved and the filing fee has been either paid or waived. Ex
parte Carter, 807 So. 2d 534, 536-37 (Ala. 2001). In any
event, the equal-protection issue, which is distinct from an
access-to-the-courts claim, is also fully implicated by the
Wyre rule.
                              22
1121399

incarcerated population." Margo Schlanger, Inmate Litigation,

116 Harv. L. Rev. 1555, 1694 (2003).6

     Enforcing the provisions of Rule 32.7(e) and § 12-19-70

is wiser in my view than leaving in place a barrier to filing

-- the Wyre rule -- that is constitutionally questionable,

unspecified in rule or statute, and incompatible with this

Court's decisions on this issue.

                              IV. Remedy

     Because Wyre is inconsistent with our prior cases on

determining indigency, Robey, in my opinion, is entitled to

relief. However, the proper remedy is not obvious. After the

Court of Criminal Appeals denied Robey's petition for a writ

of mandamus, he did not have the option of asking this Court

to   correct    that   ruling:   "If       an   original   petition    for

extraordinary relief has been denied by the court of appeals,

review may be had by filing a similar petition in the supreme

court (and, in such a case, in the supreme court the petition

shall    seek   a   writ   directed   to    the   trial    judge)."   Rule


     6
     In 2013, the Alabama Legislature enacted the Alabama
Prisoner Litigation Reform Act ("APLRA"), § 14-15-1 et seq.,
Ala. Code 1975. Although similar in substance to the PLRA, the
APLRA does not apply to Rule 32 petitions. § 14-15-2, Ala.
Code 1975.
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21(e)(1), Ala. R. App. P. Bound by Rule 21, Robey had no

choice but to direct his petition in this Court to the trial

judge rather than to the Court of Criminal Appeals. Thus,

although Robey had a clear legal right to have his IFP

application considered under the proper legal standard, the

trial judge, obeying the Court of Criminal Appeals in applying

Wyre, cannot be said to have had an "imperative duty" to

disregard Wyre and adopt our controlling precedent.

    Under the peculiar posture of this case, I would decline

to issue a writ of mandamus to the trial judge, who followed

what he understood to be valid direction from the Court of

Criminal Appeals. Instead, I would order the trial court to

reconsider   Robey's   IFP   application   in   keeping   with   the

governing precedent expounded in Hurth, Beavers, and Dozier,

and the available remedies in § 12-19-70 and Rule 32.7(e).




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