Introduction
In July of 2019, Christopher Tapp stepped out of an Idaho courthouse as a free man, after spending over twenty years in prison for a crime he did not commit.1 Mr. Tapp was convicted in 1998 of the rape and murder of Angie Dodge, despite the fact that DNA testing excluded him prior to trial.2 After more than thirty hours of interrogation, Mr. Tapp confessed to the crime.3 That confession, however, was later determined to be coerced.4 Mr. Tapp was sentenced to life in prison plus fifteen years, his conviction was upheld on appeal, and his petitions for post-conviction relief were denied.5 Post-conviction DNA testing not only affirmed Mr. Tapp’s innocence but matched to the true perpetrator: Brian Dripps.6 By the time he was exonerated, even Ms. Dodge’s family believed Mr. Tapp was innocent and had joined the fight to exonerate him.7 At the post-conviction hearing, both the judge and the district attorney supported vacating Mr. Tapp’s conviction—that is, treating the original conviction as if it never happened.8 If Mr. Tapp had lived in Alabama, however, rather than Idaho, Mr. Tapp would likely still be in prison.9
While every state in the Union—as well as the federal government—has passed some form of statute creating a right to post-conviction DNA testing,10 some states limit the applicability of that right to certain groups of people.11 Alabama’s post-conviction DNA statute—section 15-18-200—provides access to DNA testing only for capital offenders, provided they meet certain other criteria.12 Prior to the enactment of section 15-18-200, anyone seeking post-conviction DNA testing, capital or otherwise, had to bring a petition under Alabama’s general post-conviction relief statute—Rule 32 of Alabama’s Rules of Criminal Procedure—alleging that DNA technology was newly discovered evidence.13
The enactment of section 15-18-200 in 2009 created a statutory right for capital offenders to seek DNA testing but left non-capital offenders with only Rule 32 as a potential mechanism for testing.14 Capital offenders who are unable to meet the statutory requirements of section 15-18-200 must also resort to Rule 32.15 To date, there have only been three DNA exonerations in Alabama—and those cases appear to be outliers—the outcomes of which relied on the unique circumstances of each case and not on the effectiveness of Rule 32 as a mechanism for relief.16
The Alabama courts—as well as the United States Court of Appeals for the Eleventh Circuit17—have consistently maintained that Rule 32 is the only mechanism to obtain DNA testing in non-capital cases, while also, consistently declining to grant those Rule 32 petitions, summarily dismissing most petitions without even an evidentiary hearing.18 Analyzing the constitutionality of the Rule, the Eleventh Circuit—while Alabama was enacting section 15-18-20019—ruled in Cunningham v. District Attorney’s Office for Escambia County20, 592 F.3d 1237. (Cunningham I) that Rule 32 provided minimally adequate procedures to obtain post-conviction DNA testing in Alabama and thus did not violate due process.21 The Court based its decision, however, on a set of assumptions and presumptions that are inaccurate—as this Note will demonstrate through an analysis of Rule 32 petitions and orders at the trial court level.22 As applied,23 Rule 32 did not provide minimally adequate procedures at the time Cunningham I was decided and does not today.24 As this Note will show, the procedural barriers both on the face of the Rule and as applied by the courts have rendered the Rule futile.25 In the decade since that decision, the Alabama courts have neither granted Rule 32 petitions for post-conviction DNA testing nor provided post-conviction relief, despite their insistence that it is possible on the face of the Rule.26
This Note proceeds in three parts. Part I frames Alabama’s DNA testing framework by (1) outlining the mechanisms for and barriers to obtaining post-conviction DNA testing in Alabama through Rule 32 of the Alabama Rules of Criminal Procedure and section 15-18-200 of Alabama’s Code, (2) discussing the primary cases—Osborne and Cunningham—governing the constitutionality of post-conviction DNA testing as it pertains to Alabama, and (3) illustrating the procedural barriers to obtaining post-conviction DNA testing in Alabama, specifically for non-capital offenders. Part II demonstrates the ways that DNA testing has been denied in Alabama by discussing (1) the cases that led up to the decision in Cunningham I, (2) the cases that have attempted to obtain testing in its wake, including Cunningham’s own petition, (3) the ways in which Alabama courts arbitrarily deny DNA testing, and (4) the futility of the post-conviction relief statute. Part III proposes two amendments to Alabama’s statutes that would expand the category of people who can obtain post-conviction DNA testing and when they are allowed to access it.
I. Background
A. DNA Statutes and the Innocence Movement
In recent decades, judges, practitioners, and much of the criminal justice system writ large have recognized the incredible power of DNA to identify the perpetrators of crimes and exonerate the innocent.27 This recognition is evident in the “innocence movement” and the push nationwide to create statutory procedures to obtain post-conviction DNA testing to prove one’s innocence.28 New York and Illinois became the first states in the nation to pass such statutes, and every state in the nation, as well as the federal government, followed suit.29 The statutes vary in their requirements from state to state, some denying testing to those who pled guilty, some with varying custody requirements, some with strict statutes of limitations, and at least one limiting testing to only those convicted of capital offenses.30 To date, there have been 375 DNA exonerations nationwide.31 With the increase in public awareness surrounding the need for post-conviction DNA testing, however, comes the awareness that many of the statutes have procedural limitations that bar relief in many instances.32 As petitioners around the country try to obtain DNA testing, gaps in the statutes—either on the face of the statute or as interpreted by the judges who apply them—have become clear.33 Some states have sought to amend their statutes to fill these gaps, but many other states have moved in the opposite direction, limiting access to post-conviction DNA testing.34
B. Alabama’s Post-Conviction DNA Testing Framework
1. Rule 32
In Alabama, all individuals convicted of non-capital offenses seeking post-conviction DNA testing must petition the court through Rule 32 of the Alabama Rules of Criminal Procedure.35 Rule 32 is Alabama’s general post-conviction relief statute, allowing a petitioner to launch a collateral attack on his conviction on a number of grounds.36 Until 2009—when Alabama created a separate DNA statute for capital offenders, discussed infra Section I.B.2—Rule 32 was the only means of obtaining post-conviction DNA testing for both capital and non-capital offenders alike.37 While petitioners have attempted to bring a motion for DNA testing outside of Rule 32, courts have consistently treated such motions as Rule 32 petitions, regardless of the mechanism by which the petitioner brought the case.38 Alabama has consistently maintained that Rule 32 is the proper mechanism for post-conviction DNA testing in non-capital cases because it creates an avenue for a deserving applicant to access evidence supporting his claim of innocence.39 The Alabama courts, however, have yet to find a deserving applicant.40
In relevant part, Rule 32.1(e) provides a mechanism for individuals to seek post-conviction relief when newly discovered facts—in this case, DNA technology—exist that require a conviction be vacated because: (1) the facts were unknown and could not be discovered through due diligence at the time of trial or in any collateral proceeding; (2) the facts are not merely cumulative; (3) the facts are not merely impeachment evidence; (4) if the facts were known at trial, the outcome would have been different; and (5) the facts establish that the individual is innocent.41 A claim for relief based on newly discovered evidence must meet all five requirements of Rule 32.1(e).42
2. Section 15-18-200
Alabama was one of the last states in the Union to create a DNA statute, doing so finally in 2009.43 That statute—section 15-18-200—allows individuals convicted of a capital offense to obtain DNA testing if the results would show the individual’s actual innocence.44 Once an individual has the exculpatory DNA results, he may then present the results to a court within six months as newly discovered evidence, pursuant to Rule 32.1(e) and 32.2(c), discussed infra Section I.D.3.45 Although section 15-18-200 created a statutory right to DNA testing when the results could show innocence, it limited DNA testing only to those convicted of a capital offense, and further provided that testing would only be available for one year following the enactment of the statute or within one year of conviction.46 Thus, any petitioner seeking post-conviction DNA testing, even in capital cases, who did not file a motion in the one year time period following the enactment of section 15-18-200 is time-barred.47 If such an individual wishes to obtain DNA testing, he must do so in the same manner as those convicted of non-capital offenses—through Rule 32—by claiming that DNA technology is newly discovered evidence.48
Since the enactment of section 15-18-200, few capital offenders have been able to successfully obtain DNA testing and none have been granted post-conviction relief.49 Irrespective of the limitations in the statute for capital offenders, however, non-capital offenders are excluded from any remedy that the DNA statute may provide.50 Despite the push nationwide to make DNA testing more available to those alleging innocence, Alabama continues to deny such testing.51
C. Cunningham v. District Attorney’s Office for Escambia County
Dewayne Cunningham was convicted in 1996 of the rape of Alicia Brown after Brown identified Cunningham as her assailant.52 After losing his appeals, Cunningham challenged his conviction several times in both federal and state court between 1999 and 2004, alleging primarily ineffective assistance of counsel and actual innocence, but he did not request DNA testing.53 In 2006, Cunningham filed a claim under 42 U.S.C. § 1983 in federal court seeking DNA testing of a condom wrapper, fingernail scrapings, and pubic hair combings, which he argued could prove his innocence.54 Cunningham alleged that Alabama’s refusal to grant him access to post-conviction DNA testing amounted to an unconstitutional violation of due process, access to courts, and equal protection.55 The district court dismissed his claim, Cunningham appealed, and in 2010, the Eleventh Circuit affirmed.56
The Eleventh Circuit considered Cunningham’s claim in light of the Supreme Court’s then-recent decision in District Attorney’s Office for the Third Judicial District v. Osborne.57 Osborne, like Cunningham, sought DNA testing to prove his innocence and alleged that Alaska’s denial of DNA testing violated his due process rights.58 The Supreme Court held that individuals have no substantive due process right to post-conviction DNA testing.59 Even so, when a state chooses to create a mechanism entitling individuals to post-conviction DNA testing through its statutes, it must also create minimally adequate procedures to actually access the testing and must not arbitrarily deny relief.60 When a state does create such a statutory right, but does not adequately provide procedures to access the right, it is a procedural violation of due process.61 Generally speaking, federal courts will only disrupt a state’s post-conviction relief statute if the statute is inadequate to provide those convicted with their substantive rights.62 In other words, as long as the state’s statute has a procedure to seek relief that a federal court deems “adequate,” the federal courts will not strike down the state law on the basis of procedural due process concerns.63 The Supreme Court found Alaska’s post-conviction relief procedure adequate in Osborne because it allowed for relief when there was a compelling showing of actual innocence; exempted those claims from any time limitations; and provided discovery in post-conviction proceedings.64
Applying the same reasoning of the Supreme Court, the Cunningham I Court ruled that because Alabama provides a mechanism for post-conviction relief under Rule 32, Alabama had adopted minimally adequate procedures to access DNA testing.65 The Court based its decision, however, on at least one basic assumption that is inherently flawed: that Rule 32 is actually adequate.66 The Court undermined its own holding by acknowledging that if Cunningham were to bring a Rule 32 petition seeking DNA testing in state court it would likely be denied on procedural grounds.67 The Court nevertheless declined to find that Rule 32 was facially inadequate.68 As this Note demonstrates, Rule 32 was inadequate when Cunningham I was decided and remains so today.69
D. Barriers to Post-Conviction Relief Under Rule 32
This Section outlines some of the barriers within Rule 32 that make it impossible to obtain post-conviction DNA testing under the Rule. Rule 32 has strict pleading requirements, discussed infra Section I.D.2, that often render most petitions dead on arrival, especially for pro se prisoners.70 Furthermore, even for a well-pled petition, obtaining DNA testing under Rule 32 requires first obtaining the physical evidence from the state in order to conduct testing.71 While Rule 32 allows for discovery of state evidence, it does so on a “good cause” standard, which, for DNA cases, creates a catch-22 that renders it nearly impossible to actually conduct testing.72 Finally, even for petitions that are well-pled and present good cause to obtain discovery, Rule 32 bars successive petitions and requires that a petitioner bring their claim within six months of discovering the DNA technology they seek to use—a feat that is impossible for technology that is now well-established.73
This Section concludes by discussing an exception to Rule 32’s time limitations that some Alabama courts have suggested may allow relief in some instances: equitable tolling.74 Even where a court has acknowledged the potential for equitable tolling, however, it has also found that the petitioner did not exercise due diligence—that is, should have known to request DNA testing sooner— and has thus denied relief.75 These barriers within Rule 32 work together, as this Section demonstrates, to render Rule 32 inadequate to access the right to DNA testing that Alabama has statutorily created and judicially affirmed.76
1. Rule 32 Pleading Requirements
A Rule 32 petitioner has the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle him to relief.77 Additionally, a Rule 32 petition must allege, clearly and with specific and sufficient detail, all the grounds for relief, including more than bare conclusions and allegations.78 Petitions that are determined to be insufficiently specific, include boiler-plate language, or fail to state an adequate claim for relief are summarily dismissed by circuit courts.79 For DNA petitions, the claim for relief must clearly allege that DNA can prove a petitioner’s innocence and that he was unaware of the evidence he seeks to test at the time of trial.80 Because Rule 32 petitions resemble complaints rather than motions,81 the pleading requirements are interpreted strictly and petitions are often summarily dismissed due to inadequate pleading.82 Rule 32.1(e)(5) does not require that an individual plead actual innocence but requires only that the newly discovered fact must bear on the issue of innocence, rather than on an issue not directly tied to innocence, such as a procedural violation.83
2. Rule 32 Post-Conviction Discovery: A Catch-22
Newly discovered evidence must come in the form of actual DNA results that exonerate a defendant, which may be obtained through post-conviction discovery at the discretion of the trial court where justice requires.84 Obtaining the DNA results, however, requires access to the evidence, so a defendant can only bring a Rule 32 petition challenging his conviction based on newly discovered exculpatory DNA evidence once he has first obtained post-conviction discovery of the DNA evidence.85 Post-conviction discovery motions are judged on a “good cause” standard.86 If a claim is meritorious on its face—i.e., it contains “matters and allegations . . . which, if true, entitle the petitioner to relief”—then an evidentiary hearing must be held.87 In order to determine if there is good cause, courts consider: issues presented in the petition; the scope of the requested discovery; the length of time between the conviction and the post-conviction proceeding; the burden of discovery; and the availability of the evidence through other means.88 Courts have emphasized that discovery requests must be appropriately narrow and limited in scope and amount to more than just a fishing expedition.89 Courts examine a showing of good cause based on the elements of the claim for which discovery is requested; for example, when seeking discovery based upon ineffective assistance of counsel, a petitioner must satisfy the Strickland test.90
Therefore, in order to avoid dismissal at the pleading stage of a Rule 32 petition and obtain discovery of DNA evidence, one must not only plead “a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds,” but must also “allege facts that, if proved, would entitle him or her to the relief sought before he or she can seek discovery in support of the ground alleged.”91 Trial courts have discretion in discovery orders and post-conviction courts will only compel discovery in rare and unusual cases.92
Some Alabama judges have expressed skepticism that a successful Rule 32.1(e)(1) claim could realistically be brought.93 This skepticism is due to an apparent catch-22: a petitioner is unable to obtain DNA results without a valid claim but does not have a valid claim until DNA results are obtained.94 Most opinions, however, have dismissed this concern and indicated a willingness to consider post-conviction discovery as a means of obtaining DNA testing if good cause is shown.95
In discussing Alabama case law regarding post-conviction discovery, the Eleventh Circuit in Cunningham I noted that there were several decisions from Alabama that show that it is theoretically possible to use Rule 32 discovery to obtain and test physical evidence.96 The court then went on to provide several examples of cases where post-conviction Rule 32 discovery was used to obtain evidence for forensic testing.97 In Ex parte Perkins,98 the petitioner successfully sought discovery to perform testing of blood evidence as part of his claim that his counsel was ineffective for failing to obtain testing at the time of trial.99 In Stallworth v. State,100 the petitioner successfully sought discovery to retest blood evidence as part of his claim of prosecutorial misconduct and ineffective assistance of counsel.101 Most notably for purposes of this Note, in Arthur v. State,102 the petitioner used Rule 32 discovery to obtain DNA testing of crime scene evidence in an effort to prove his claim that someone else committed the crime.103
In all of the cases cited by the Eleventh Circuit in Cunningham I, each of the Rule 32 discovery requests accompanied and were supported by other new evidence already available or were part of a separate claim.104 The Cunningham I court acknowledged that while there has not been a single case where an Alabama judge granted discovery based solely on the claim that DNA testing will establish innocence, there is nothing in the case law to indicate that a Rule 32 discovery request brought on the sole claim that DNA testing will prove innocence will inevitably fail.105 Put another way, while courts have not granted Rule 32 discovery requests for DNA testing as stand-alone claims, they have also not explicitly said the claim will fail on its face.106 The Eleventh Circuit indicated that Cunningham might successfully bring a Rule 32 discovery petition, as his claim was narrowly focused on specific pieces of evidence and it was clear what he believed the evidence would show.107 The Court then went on to acknowledge that his Rule 32 petition would likely fail on procedural grounds.108 It nonetheless ruled that Rule 32 was the proper and adequate avenue for Cunningham’s claims, despite the fact that his petition would likely fail.109
Even when a court orders discovery as part of a Rule 32 post-conviction DNA testing petition, it does not always (and in fact rarely, if ever, does) grant relief to the petitioner.110 In the few cases cited above, even after the judges granted the discovery orders, the judges then either denied the petitions summarily or after an evidentiary hearing.111 In Stallworth, the court ordered discovery of certain items of evidence as part of his ineffective assistance of counsel claim, but Stallworth did not question his attorney at the evidentiary hearing.112 The court determined that this failure to question the attorney meant that Stallworth did not have adequate evidence to establish that his attorney was in fact ineffective and dismissed his petition.113 In Arthur, the court ordered discovery of some of the crime scene evidence and held an evidentiary hearing but ruled that the DNA results—which excluded the man Arthur claimed admitted to the crime—proved that Arthur’s claim that someone else committed the crime had no merit and dismissed the petition without ordering further discovery.114 In Perkins, the Alabama Court of Appeals ordered discovery of some of the documents Perkins sought, but denied all others.115 After years of hearings and appeals, the Alabama Court of Criminal Appeals affirmed the denial of post-conviction discovery and relief.116
3. Preclusion of Remedy: “Newly Discovered,” Statute of Limitations, and Successive Petitions
Even if one meets the requirements in the text of Rule 32.1, Rule 32.2 limits the class of people who may bring an otherwise valid claim by providing additional barriers to post-conviction relief.117 Under Rule 32.2(b), successive petitions will be denied relief if the petition alleges similar grounds as a prior petition.118 A successive petition on different grounds will only be granted if the petition shows good cause why the new grounds were unknown or could not have been discovered through due diligence at the time of the first petition, and shows that a failure to allow the successive petition would amount to a miscarriage of justice.119
As it relates to post-conviction DNA testing, if a petitioner has previously filed a Rule 32 petition seeking post-conviction relief on different grounds, a new petition will be summarily dismissed if the petition does not allege that the new grounds—DNA technology available with the ability to prove innocence—could not have been ascertained through reasonable diligence when the first petition was heard.120 In other words, if the DNA technology was available during a prior petition, the successive petition will be denied, as the court will find that it could have been ascertained through due diligence.121 Therefore, because DNA technology has been generally available for at least two decades, if a petitioner sought to challenge his conviction on any grounds during the last two decades, he did so while DNA technology was available.122 A court would then likely determine that his failure to seek DNA testing at the same time as his prior petition was a failure to exercise due diligence and any subsequent petition would therefore be barred by Rule 32.2(b).123
Perhaps the greatest barrier to post-conviction relief in Alabama is Rule 32.2(c), which provides that any petition for post-conviction relief is subject to a one-year statute of limitations.124 Claims of newly discovered evidence are not time-barred in the same manner, and can be brought at any time post-conviction, but they must be brought within six months of discovering the new evidence.125 A Rule 32 petitioner claiming newly discovered DNA technology, therefore, must bring his petition within six months of discovering the new technology.126 In Dowdell v. Alabama,127 the Court found that DNA technology had been available for over a decade before Dowdell brought his Rule 32 petition and dismissed the petition as time-barred.128 In Barbour v. Alabama,129 the court found that the petition was not time-barred because Barbour was arguing new advancements in DNA technology, but dismissed the petition on different grounds.130 The Escambia County Circuit Court in Cunningham v. State131Cunningham Order, supra note 75, at 14–15. (Cunningham II) outlined the dates on which modern DNA technology became widely known: STR-DNA in 1996;132 mt-DNA in 1996;133 Y-STR in 2006;134 and touch DNA in 2008.135 The court used these dates to determine that all but the touch DNA technologies were available and known prior to six months before Cunningham brought his Rule 32 petition.136 As with the bar on successive petitions, if the DNA technology was available during any prior proceedings, the court will dismiss the case as time-barred and rule that it is not newly discovered evidence.137 Without new developments in DNA technology, it would be impossible to argue that DNA is “newly discovered” under Rule 32.2(c).138
4. An Unlikely Solution: Equitable Tolling
Although Rule 32.2(c) renders most claims of newly discovered DNA evidence time-barred, the Alabama courts have allowed exceptions to statutes of limitations in extraordinary circumstances under the doctrine of equitable tolling.139 In Ward v. Alabama,140 the Alabama Supreme Court recognized the need to allow equitable tolling when extraordinary and unavoidable circumstances exist that are beyond the petitioner’s control even when exercising due diligence.141 Courts have clarified that due diligence does not require a petitioner to exhaust all his options or undertake futile or repeated efforts, but they must make reasonable efforts.142 Additionally, courts have acknowledged that due diligence must be considered in light of the circumstances, conditions, and realities of living inside of a prison, with the limited resources and opportunities that accompany the prison system.143 In Ward, the Alabama Court of Criminal Appeals found that the petitioner—a prisoner on death row—did not fail to exercise due diligence when his attorney expressly ignored his wishes, filing a habeas petition rather than a Rule 32 petition.144 Nevertheless, equitable tolling is only granted in extreme circumstances, and the threshold for meeting that standard is extremely high.145 Courts have declined to find extreme circumstances sufficient to apply equitable tolling in cases of a prisoner’s pro se status, late notice of decisions, inadequate resources in the prison library, and normal attorney errors.146
In Cunningham II, the petitioner conceded that his Rule 32 petition was time-barred but argued that the court should apply the doctrine of equitable tolling.147 Cunningham argued that DNA technology was unavailable at the time of trial, and even once the technology became available, Alabama refused to turn over the evidence for testing, thus presenting extraordinary circumstances beyond his control.148 In its opinion, the court conflated its discussion of equitable tolling with the requirements of Rule 32.1(e)(1), finding that Cunningham did not exercise due diligence and was not entitled to equitable tolling because he could have sought DNA testing much earlier and the circumstances were therefore not extraordinary.149 This application of the doctrine of equitable tolling by the Escambia County Circuit Court reveals that while equitable tolling has the potential to overcome the six-month statute of limitations for newly discovered evidence, it will not be granted if the DNA technology was available during any prior proceeding.150
II. Analysis: Rule 32 is Constitutionally Inadequate As-Applied
Alabama courts have been generally unwilling to grant Rule 32 petitions requesting DNA testing on grounds of newly discovered evidence, though they have declined to explicitly find that such relief is impossible.151 Even the former Attorney General of Alabama, William Pryor, has acknowledged that most non-capital Rule 32 petitions are summarily dismissed without even a hearing.152 While it is difficult to determine exactly how many Rule 32 petitions are granted and denied at the trial level, the appellate record reflects that very few petitions for post-conviction testing of evidence are granted.153 Even fewer petitions, if any exist at all, are granted relief based on the results of that testing.154
DNA evidence was first used and accepted in Alabama courts in 1991.155 Because of this, and because the public is widely aware of the potential for DNA evidence in criminal cases, the Alabama courts have been reluctant to consider DNA technology as newly discovered evidence—that is, it cannot be new if it has been accepted for 29 years.156 While DNA testing in general is not considered newly discovered for purposes of Rule 32.1(e), Alabama courts have indicated a willingness to consider new advances in DNA technology as potentially newly discovered evidence, provided that the new advancements were unavailable at the time of trial, or during any subsequent appeals or collateral attacks.157 In Barbour v. State,158 the court recognized that it had previously not considered DNA to be newly discovered evidence but distinguished the case by acknowledging that the claim was based on the development of new technology that could exonerate Barbour rather than the claim that DNA testing was not done at trial.159 While the courts have acknowledged this potential avenue, however, they have not granted such a petition, and continue to deny petitions alleging new DNA technology, despite their insistence that it is possible to bring such a claim.160
A. Rule 32 was Inadequate when Cunningham I was Decided
Two Alabama cases prior to the Eleventh Circuit’s decision in Cunningham I formed much of the foundational case law interpreting Rule 32 petitions for post-conviction DNA testing:161 Dowdell v. State162 and Barbour v. State.163 Dowdell was convicted in 1986 of rape and sentenced to eighteen years in prison.164 In 2001, Dowdell filed a Rule 32 petition alleging newly discovered evidence in the form of DNA technology that could establish his innocence.165 He did not have the exculpatory DNA results at the time he filed his petition but was seeking to obtain DNA testing to prove that he was innocent.166 The Alabama Court of Criminal Appeals found that because DNA technology had been widely available since 1991, it was not newly discovered and was time-barred under Rule 32.2(c).167 Although Dowdell claimed that he only learned of the DNA technology recently, thus falling within the six-month requirement of 32.2(c), the Dowdell Court did not find this claim credible.168 Both the concurring and dissenting opinions in Dowdell emphasized the need for post-conviction DNA testing, recognized the due process concerns that existed in denying certain procedures for postconviction DNA testing, and identified the procedural barriers to successfully bringing a Rule 32 petition.169
Christopher Barbour was convicted in 1993 of three counts of murder committed alongside two other men.170 In 2001, Barbour brought a Rule 32 petition alleging newly discovered evidence in the form of DNA technology unavailable at the time of trial that had the power to exonerate him.171 The Alabama Court of Criminal Appeals found that, unlike Dowdell, his petition was not time-barred under 32.2(c) because he was arguing that recent technological developments would exonerate him, rather than DNA testing in general.172 The Barbour Court nevertheless dismissed his petition because he was convicted as an accomplice, and therefore the court found that had exculpatory DNA results been known at trial, the result would not have been different—that is, had another man’s DNA been found on the victim, it would not prove that Barbour was not an accomplice to her murder.173 The majority expressed that procedures should be put in place to allow for post-conviction testing but acknowledged that the legislature or the Alabama Supreme Court were the proper bodies for determining such a procedure.174 The dissent agreed that procedures needed to be put in place but argued that petitioners should not be deprived of a remedy merely because the legislature had not created a mechanism to obtain testing.175 While the Alabama Legislature passed section 15-18-200 five years later, providing such a procedure for capital cases, neither the legislature nor the Alabama Supreme Court have taken up the issue for non-capital cases.176
B. Rule 32 Continues to Be Inadequate
Recent cases have moved in the direction of allowing discovery but have not gone so far as to grant relief.177 Thomas Arthur successfully sought Rule 32 discovery to subject evidence from his case to DNA testing to substantiate a claim that another man, who confessed, committed the crime.178 There, the newly discovered evidence was not the DNA, but rather the confession of the other man. The post-conviction court ordered an evidentiary hearing on that new evidence and ordered DNA testing to determine the legitimacy of the claim.179 When the DNA results excluded the other man, the Arthur Court denied the Rule 32 petition, finding that the non-DNA evidence used to convict Arthur at trial revealed that the confession was false and did constitute newly discovered evidence.180
While this case could be seen not as a failure of Rule 32 but rather as a deficiency in the petitioner’s case, this conclusion is wrong. Arthur sought DNA testing to support a separate claim of newly discovered evidence.181 He was not alleging that the DNA technology itself was newly discovered.182 Thus, his ability to obtain discovery must be considered separate from the question of whether a petitioner can get Rule 32 discovery of evidence on a claim of newly discovered DNA technology alone. As the Cunningham I Court itself pointed out, there has never been successful discovery of evidence based solely on a claim of DNA technology as newly discovered evidence.183
In Stallworth, the petitioner sought to test evidence in an attempt to prove his claim that counsel was ineffective for failing to conduct independent DNA testing at trial.184 The Stallworth Court ordered discovery of the evidence but denied relief on the grounds that Stallworth abandoned his claims when he failed to adequately present evidence at the evidentiary hearing.185 Again, as in Arthur’s case, Stallworth sought DNA testing as part of a separate claim of ineffective assistance of counsel.186 While it could be true that Stallworth was deficient at the evidentiary hearing, his apparent deficiency was not based on the inability of DNA evidence to prove his innocence but rather on his inability to adequately question his trial counsel at the hearing.187
Dewayne Cunningham, as discussed supra,188 was convicted in 1996 of the rape of Alicia Brown, for which he maintained his innocence.189 Following the Eleventh Circuit’s dismissal of his § 1983 claim in Cunningham v. District Attorney’s Office, Cunningham filed a Rule 32 petition in state court seeking discovery and testing of three specific items containing DNA evidence that he believed could prove his innocence: a condom wrapper, pubic hairs, and fingernail scrapings.190 In his petition, Cunningham argued that Rule 32 provides a mechanism to acquire newly discovered evidence, including DNA testing.191 He presented evidence that STR-DNA, Y-STR, mt-DNA, and touch DNA testing did not exist at the time of trial and could not have been discovered with due diligence.192 Cunningham acknowledged that his Rule 32 petition was untimely but argued that he was entitled to equitable tolling because he had been attempting to obtain DNA testing since 2004, but Alabama refused to turn over the evidence.193 Cunningham argued that the difficulty of obtaining exculpatory DNA results without first obtaining the DNA for testing presented extraordinary circumstances.194
In an eighteen-page order dismissing the Rule 32 petition, the Escambia County Circuit Court found that all forms of DNA testing except touch DNA were available during prior appeals and petitions, and thus could not constitute newly discovered evidence entitled to equitable tolling.195 The court found that Cunningham was not entitled to equitable tolling on the fingernail and hair fragments because STR-DNA and mt-DNA testing were available prior to 2004 when he first sought testing.196 The trial court acknowledged that Y-STR testing only became available in 2006 but found that these developments occurred while Cunningham’s § 1983 case was pending in federal court.197 There, he argued due process violations rather than newly discovered evidence and was thus, the court found, not entitled to equitable tolling because his choice of claims showed a lack of due diligence.198 The court then cited the Eleventh Circuit’s opinion that warned Cunningham of the difficulties in bringing a timely petition as its justification for denying the petition.199
The Escambia County Circuit Court provided some hope in its acknowledgment that touch DNA only became widely known after 2008 and thus found that subjecting the condom wrapper to DNA testing met the standards for newly discovered evidence, discovery, and equitable tolling.200 The court declined to order testing, however, as exculpatory results on the condom wrapper alone would not have been enough to exonerate Cunningham.201 The court conceded that exculpatory results from testing all three items of evidence would have been enough to exonerate Cunningham, but ruled that some items could not be tested because the type of DNA testing sought on those items was not timely requested and the final piece of evidence—which could be tested using DNA technology that did fall within the time limitations—would not be enough by itself to exonerate Cunningham.202
Robert Lloyd was convicted of rape in 2006 and in 2012 brought a Rule 32 petition seeking post-conviction DNA testing of the rape kit.203 The trial court denied his petition, finding that Lloyd could not satisfy the requirements for newly discovered evidence.204 The State argued that because Lloyd was aware that he did not provide a DNA sample at the time of trial, and because Lloyd did not allege that he was unaware of the existence of the rape kit, he could not claim that the evidence was newly discovered.205 The trial court agreed and dismissed Lloyd’s petition as a successive petition.206 On appeal, the Alabama Court of Criminal Appeals found that Lloyd satisfied the requirements of Rule 32.1(e)(2–5), but agreed with the State that he could not claim newly discovered evidence because he did not state in his petition that he was unaware of the existence of the rape kit at trial or that it could not have been subject to DNA testing.207 Unlike the defendants in Barbour and Cunningham,208 Lloyd failed to argue that technological improvements in DNA testing since his trial, posttrial motions, or previous Rule 32 petitions constituted newly discovered evidence.209
In 2015, Buddy Craft filed a Rule 32 petition alleging that new DNA technology was available that could prove his innocence of a rape for which he was convicted in 2006.210 Although DNA testing of underwear prior to trial matched Craft, he alleged that the underwear was not that of the victim’s, but rather that of Craft’s wife.211 He alleged that modern advancements in DNA technology could reveal the profile not just of Craft, but that of his wife, as well, proving his theory that the State tested the wrong piece of evidence.212 Because these technologies—mini-STR testing and GlobalFiler213—were recently developed, they could not have been discovered at trial or in a prior petition.214
In a three-page order, the Jackson County Court dismissed his petition as successive and found that Craft did not allege good cause why this claim could not have been brought in a prior petition.215 Without addressing Craft’s allegation that the underwear belonged to his wife, the court relied on the finding that DNA matched to Craft at trial.216 Ignoring Craft’s clear and specific allegation that new technology exists that can reveal multiple profiles in degraded DNA samples,217 the court further ruled that a DNA analyst testified at trial and provided no evidence that the results could be different with new technology.218 The Alabama Court of Criminal Appeals affirmed without opinion and the Alabama Supreme Court denied certiorari.219
C. The Futility of Rule 32 in Practice Today
The Alabama courts have interpreted Rule 32 in such a way that petitioners cannot successfully overcome its procedural barriers.220 Currently, the only path to obtaining post-conviction DNA testing in non-capital cases is to bring a Rule 32 petition arguing that new technological advances in DNA testing are available that were unavailable at the time of trial or at the time of any subsequent appeals, motions, petitions, or collateral attacks, constituting newly discovered evidence under Rule 32.1(e).221 The petition must provide a clear and specific statement of the grounds upon which relief is sought and the reason that remedy is due, providing specific facts as to each element of Rule 32.1(e).222 One must simultaneously seek discovery of the DNA evidence, arguing that good cause exists for ordering discovery of the evidence.223 In arguing good cause, the request must explicitly address the following: the issues presented in the petition; the scope of the requested discovery (that is, the specific items to be tested; the length of time between the conviction and the post-conviction proceeding; the burden of discovery; and the availability of the evidence through other means.224
Because petitions for post-conviction DNA testing are likely to fall outside of the six-month filing requirements of Rule 32.2(c), a successful petition will likely need to argue that extraordinary circumstances outside a petitioner’s control entitle him to equitable tolling.225 While a Rule 32 petition does not necessarily require alleging grounds for post-conviction relief other than newly discovered DNA evidence, the Alabama courts have indicated that obtaining DNA testing as a means to prove other grounds for wrongful conviction—e.g., ineffective assistance of counsel—may be more likely to succeed.226 Rule 32 petitions may not be brought as successive petitions and while newly discovered evidence is generally not considered successive, if the newly discovered evidence was available during a prior petition, a subsequent petition will be dismissed.227 Alabama does not recognize a right to counsel in post-conviction litigation, so many prisoners file petitions for post-conviction relief pro se.228 It is unlikely that many of these pro se petitioners are well-versed enough in the intricacies of DNA technology to request testing in their petitions.229 Thus, many potentially strong candidates for post-conviction DNA testing are likely already barred by the procedural barriers inherent in Rule 32.230
One can easily imagine a case, like that of Christopher Tapp, where there is a compelling case for innocence, where the potential for DNA testing could affirmatively prove his innocence, but where Alabama’s procedural barriers make it impossible to obtain such testing. One need not imagine, however, as there are potentially dozens of cases in Alabama with stories just like Mr. Tapp’s. Practitioners on the ground can file Rule 32 petitions, appropriately meeting all the pleading requirements and overcoming the procedural barriers, but the Alabama courts will likely deny those petitions.231 When they do, however, the Eleventh Circuit will have the opportunity to revisit its decision in Cunningham I.
The Court did revisit the topic in November 2019, when it used the reasoning from Cunningham I to find Georgia’s DNA statute constitutional.232 In that case, Cromartie v. Shealy, the Eleventh Circuit analyzed the constitutionality of Georgia’s statute by conflating its own decision in Cunningham I and the Supreme Court’s decision in Osborne.233 By continuing to find post-conviction DNA procedures consistent with fundamental fairness, the Eleventh Circuit continues to arbitrarily deny an otherwise qualified petitioner access to post-conviction DNA testing to prove his innocence.234 Ray Cromartie was executed on November 13, 2019, after the Supreme Court denied certiorari, for a crime that DNA testing could have proved he did not commit.235 Similar to the case of Christopher Tapp, discussed in the Introduction, even the victim’s family supported DNA testing in Cromartie’s case, but the Court nevertheless denied the request.236 Ray Cromartie’s case is tragic, but it is just one example of the harmful impact Cunningham I has had on prisoners alleging innocence in Alabama and throughout the Eleventh Circuit’s jurisdiction.237
The Eleventh Circuit must revisit its decision in Cunningham I by considering the factual basis upon which the decision rested: whether Alabama’s DNA procedures are adequate.238 Faced with a decade of failed petitions, it is difficult to see how the Eleventh Circuit or the United States Supreme Court will justify maintaining a finding that Alabama’s procedures under Rule 32 are adequate, given that they have been inadequate for every petitioner who has sought to use them.239 There could be any number of potentially compelling cases in Alabama where a petitioner seeking post-conviction DNA testing to prove his innocence will be procedurally barred by Rule 32.240 It is those cases that have the power to illuminate not only why Rule 32 is inadequate, but why Cunningham I was based on a set of assumptions that continue to be wrong.241 Practitioners on the ground should continue to bring those cases and force the Eleventh Circuit to confront its decision. Until the Eleventh Circuit does revisit its decision in Cunningham I, there is much that the Alabama legislature can do to make its procedures constitutional.
III. Proposal: Amend Rule 32 and Section 15-18-200
This Part outlines two primary proposals that would make Alabama’s DNA procedures more constitutionally adequate. Section A provides an overview of just what is required to successfully access DNA testing under Rule 32, as it is currently written. Section B proposes an amendment to section 15-18-200 to expand the category of individuals who can access DNA testing. Section C proposes amending Rule 32, alongside section 15-18-200 to do away with time limitations, following the model of other states who have similarly amended their statutes.
A. Amending Section 15-18-200 to Include Non-Capital Offenders
Prior to Cunningham I, several members of the Alabama Court of Criminal Appeals recognized the need to establish a statute allowing post-conviction DNA testing.242 As discussed supra Section I.B, the Alabama legislature created such a mechanism in 2009 under section 15-18-200 of the Code of Alabama, but included only capital offenders, leaving non-capital offenders with Rule 32 as their only means of obtaining DNA testing.243 The rationale behind the need for post-conviction DNA testing should not stop at capital cases. One proposal would be to urge the Alabama legislature to amend section 15-18-200 to include both capital and non-capital offenders. This, alone, however, is likely to be futile, as section 15-18-200 provides its own procedural hurdles that ultimately kick most petitioners, capital or otherwise, back to Rule 32.244 Thus, amending section 15-18-200 to include non-capital offenders must be done alongside an amendment to Rule 32. If section 15-18-200 is amended alongside amending Rule 32 to do away with time limitations, it could create a statutory right to DNA testing for all petitioners in Alabama absent any time limitations.
B. Amending Rule 32 or Section 15-18-200’s Time Limitations
All forms of DNA testing currently available have been accepted in the Alabama courts for more than six months, the threshold imposed by Rule 32,245 and, as time goes on, petitioners will likely become more and more unlikely to persuade a judge that even new technological advancements in DNA are newly discovered—that is, as time passes, even new technology will no longer be considered new.246 One proposal to avoid summary dismissal of petitions as time-barred would be to amend Rule 32.2(c) to extend the time for filing petitions for newly discovered evidence or create an exception for DNA testing petitions. One of the reasons the Supreme Court found Alaska’s DNA procedures to be adequate in Osborne was the absence of such time limitations.247 Rule 32 petitions alleging newly discovered evidence have no time limitations in relation to the time of trial—a factor the Eleventh Circuit considered when it found the Rule adequate.248 Those petitions must, however, be brought within six months of discovering the new evidence—an impossible feat for petitions seeking DNA testing where the technology has been in existence for longer than six months.249
Two other states—Florida and Pennsylvania—provide models for the way that Alabama could amend its statute. Florida had similar time limitations in its post-conviction DNA testing statute but has since amended its statute to do away with those time limitations.250 Pennsylvania, similar to Alabama, has time limitations in its post-conviction relief statute but, unlike Alabama, excludes petitions for DNA testing from those time limitations.251 Alabama should adopt one of these alternatives in order to provide adequate procedures to access DNA testing.
Florida’s DNA statute—Rule 3.853 of Florida’s Rules of Criminal Procedure—was enacted in 2001 and created a deadline for filing petitions.252 Shortly after the Rule was created, the Criminal Procedure Rules Committee of the Florida Bar challenged that deadline—originally within two years of conviction or by October 1, 2003.253 In 2004, Governor Jeb Bush signed legislation that extended the deadline to 2005 or within four years of conviction and Rule 3.853 was amended accordingly.254 In 2006, the Florida legislature once more amended Rule 3.853 to do away entirely with all time-based limitations.255 Amending Alabama’s Rule 32 to similarly do away with its six-month time limitation for newly discovered evidence would allow capital and non-capital offenders alike to present claims of newly discovered evidence in the form of DNA technology capable of proving a petitioner’s innocence.
This simple, but essential, amendment would at the very least make Rule 32 adequate on its face and could open the door for those who would otherwise be barred by the Rule as written. While critics of this proposal might argue that this would open the floodgates to litigation, this criticism is flawed in several ways. First, the timeliness requirements of Rule 32 do not stop individuals from bringing Rule 32 petitions, as demonstrated supra Section II.256 As the rule currently stands, individuals bring Rule 32 petitions, knowing they are otherwise time-barred, but argue that they are nonetheless entitled to DNA testing.257 Amending the Rule to do away with timeliness requirements would merely allow those cases, already being brought, to be heard on the merits.258 To the extent that petitions would increase, it is very likely that it would be the result of a recognition by those reluctant to bring a petition in the past because of the futile nature of the procedure that while today Rule 32 petitions are impossible,259 under this proposed amendment, they become possible. Furthermore, this proposed amendment would not require a post-conviction court to order DNA testing in all cases, as the other limitations of Rule 32—e.g., pleading requirements and the ban on successive petitions260—as discussed supra Section I.B–C, would limit DNA testing to those who can actually show that testing would establish their innocence.261
Pennsylvania offers an alternative that would ensure Alabama’s procedures are adequate while at the same time limiting those who may bring a motion for DNA testing. Pennsylvania has a similar statutory mechanism to Alabama, with a specific DNA statute, section 9543.1,262 and a separate post-conviction relief statute, section 9541.263 Its post-conviction relief statute, like Rule 32, provides a specific time limitation for bringing claims of newly discovered evidence.264 Pennsylvania, however, in contrast to Alabama, excludes petitions for post-conviction DNA testing from the time limitations in its post-conviction relief statute, so long as the DNA results are brought before the court within one year of testing.265 While, generally, Pennsylvania’s post-conviction relief statute requires petitions for relief to be brought within either one year of conviction or within one year of when the claim could have been presented,266 the Pennsylvania courts have excluded requests for DNA testing from this time bar.267 Unlike Alabama, Pennsylvania does not preclude requests for post-conviction DNA testing based on the timeliness requirements of the post-conviction relief statute.268 In other words, a petition for DNA testing may be brought at any time post-conviction and it is the results of that testing that must fall within the time limitations of the post-conviction relief statute, i.e. within one year of receiving the results.269
If Alabama were to follow the example set by Pennsylvania, it could amend section 15-18-200 to include all offenders, and do away with its time limitations for bringing a DNA motion.270 With these amendments, Alabama could still require, under the timeliness requirements of Rule 32.2(c), a petitioner to bring the results before a court within six months of receiving the testing.271 There are certainly other bars to a successful Rule 32 petition for post-conviction relief, as discussed supra Section I.D. Under this proposal, however, a petitioner would be able to obtain DNA testing pursuant to section 15-18-200 without any timeliness requirements—in relation to his conviction or the discovery of the DNA technology—then bring the results as newly discovered evidence under Rule 32 within six months of receiving them. This would allow far more potentially innocent individuals to be able to not only access the DNA testing that can prove their innocence but present those exculpatory results to the court in order to gain relief.272 Because section 15-18-200 requires a petitioner to plead that DNA results on their face would show actual innocence, it is unlikely that this proposed amendment would lead to an unreasonable influx of post-conviction DNA testing, as very few individuals are able to meet that high standard.273 While still less than perfect, this small but significant change to the DNA procedures in Alabama would at the very least be adequate viewed in light of procedural due process requirements. Only then could Cunningham I’s reasoning that Alabama’s procedures to access DNA testing are adequate stand as true.274
Conclusion
There is, in effect, no path for non-capital offenders in Alabama to gain post-conviction DNA testing and relief, contrary to the Eleventh Circuit’s reasoning in Cunningham I. In a mere handful of cases, petitioners have gained access to DNA evidence through Rule 32 discovery.275 Of those, none have been granted relief.276 Most petitions are summarily dismissed as either successive, time barred, or failing to meet the pleading requirements.277 Alabama courts have made clear, however, that bringing a successful Rule 32 petition seeking post-conviction DNA testing is not impossible and they continue to maintain that this is the only path for a non-capital offender to obtain post-conviction DNA testing.278 The Eleventh Circuit’s opinion in Cunningham I made it easier for Alabama to continue to dismiss Rule 32 petitions on procedural grounds and insulated it from constitutional challenges.279 Cunningham’s subsequent Rule 32 petition and the Escambia Circuit Court’s order dismissing the petition reveal that the factual basis upon which the Eleventh Circuit relied is inaccurate.280
Unless the Alabama legislature amends its Rule 32 and DNA statute, Alabama is likely going to continue denying access to post-conviction DNA testing to those alleging actual innocence, despite the fact that it assures us it is possible.281 In the meantime, a successful Rule 32 petition should adopt the language of Cunningham’s petition, but specifically allege that each piece of evidence sought to be tested would be probative evidence of innocence and that every item sought to be tested will utilize newly discovered DNA technology, unavailable during any prior proceeding, and must argue for equitable tolling. If, and when, the Alabama courts deny this petition, the Eleventh Circuit may reconsider its decision in Cunningham I.