No. 17-7535
CAPITAL CASE
════════════════════════════════════════
IN THE SUPREME COURT OF THE UNITED STATES
───────────────♦───────────────
VERNON MADISON,
Petitioner,
v.
STATE OF ALABAMA,
Respondent.
───────────────♦───────────────
On Petition for a Writ of Certiorari to the
Alabama Supreme Court
════════════════════════════════════════
BRIEF IN OPPOSITION TO MADISON’S PETITION FOR
WRIT OF CERTIORARI
════════════════════════════════════════
Steve Marshall
Attorney General
James R. Houts*
Deputy Attorney General
*Attorney of Record

January 25, 2018

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, AL 36130
jhouts@ago.state.al.us
(334) 353-3637 Fax
(334) 242-7300, 353-1513*

EXECUTION SCHEDULED FOR JANUARY 25, 2018

 QUESTION PRESENTED
(Rephrased)
Should this Court grant certiorari in an eleventh-hour challenge, improperly
filed in state court, to the constitutionality of a death sentence where Alabama has
made a prospective procedural change to its capital sentencing scheme, explicitly
legislating that the procedural change should not be applied retroactively?

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 TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF AUTHORITIES ......................................................................................... iii
INTRODUCTION .......................................................................................................... 1
STATEMENT OF THE CASE....................................................................................... 3
REASONS FOR DENYING THE PETITION .............................................................. 5
I.

Madison seeks certiorari review of a decision resting solely on state
procedural and equitable grounds ............................................................ 5

II.

The non-retroactive procedural change to Alabama’s capital
sentencing scheme put in place by the Act did not render sentences
imposed by judicial override unconstitutional ......................................... 9

III.

Judicial override does not run afoul of Hurst v. Florida or Ring v.
Arizona ..................................................................................................... 11

CONCLUSION............................................................................................................. 13

ii

 TABLE OF AUTHORITIES
Cases
Arthur v. Alabama, 137 S. Ct. 831 (2017)..................................................................... 1
Beard v. Kindler, 558 U.S. 53 (2009) ............................................................................ 8
Berry v. Mississippi, 552 U.S. 1007 (2007) ................................................................... 8
Bohannon v. Alabama, 137 S. Ct. 831 (2017) ............................................................. 11
Coleman v. Thompson, 501 U.S. 722 (1991) ................................................................. 8
Dunn v. Madison, 138 S. Ct. 9 (2017) ........................................................................... 4
Estelle v. McGuire, 502 U.S. 62 (1991)........................................................................ 10
Ex Parte Bohannon, 222 So. 3d 525 (Ala. 2016) ........................................................... 9
Ex parte Evett, 89 So. 2d 88 (Ala. 1956) ........................................................................ 6
Ex parte Williams, 795 So. 2d 785 (Ala. 2001) ............................................................. 6
Harris v. Alabama, 513 U.S. 504 (1995) ................................................................. 2, 11
Hurst v. Florida, 136 S. Ct. 616 (2016). ...................................................................... 11
Madison v. State, 545 So. 2d 94 (Ala. Crim. App. 1987) .............................................. 3
Madison v. State, 620 So. 2d 62 (Ala. Crim. App. 1992) .............................................. 3
Madison v. State, 718 So. 2d 90 (Ala. Crim. App. 1997) .............................................. 3
Madison, 718 So. 2d 90; aff’d, Ex parte Madison, 718 So. 2d 104 (Ala. 1998); cert.
denied, Madison v. Alabama, 119 S. Ct. 521 (1998).................................................. 3
Ring v. Arizona, 536 U.S. 584 (2002) .......................................................................... 11
Russo v. Alabama Department of Corrections, 149 So. 3d 1079 (Ala. 2014) ............... 6
Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001) ........................................................... 6
State v. Santiago, 122 A.3d 1 (Conn. 2015) .................................................................. 4

iii

 United States v. Carver, 260 U.S. 482 (1923) ............................................................. 11
Wilson v. Corcoran, 562 U.S. 1 (2010)......................................................................... 10
Wilson v. Loew’s Inc., 355 U.S. 597 (1958).................................................................... 8
Worthington v. Worthington, 111 So. 224 (Ala. 1927) .................................................. 6
Statutes
Code of Alabama (1975)
section 12-2-2 ................................................................................................................. 5
Other Authorities
2017 Ala. Laws Act 2017-131 (“the Act”) ...................................................................... 3
ALA. CONST. 1901, art. VI, § 140(b)(1) ........................................................................... 5
Rules
ALABAMA RULES OF APPELLATE PROCEDURE
Rule 2(b) ......................................................................................................................... 5
Rule 8(d)(1) ................................................................................................................. 5, 7
Rule 21 ........................................................................................................................... 6
Rule 39 ........................................................................................................................... 6
ALABAMA RULES OF CRIMINAL PROCEDURE
Rule 32.1(a), (c) .............................................................................................................. 7
Rule 32.2(c)..................................................................................................................... 7
Rule 32 ........................................................................................................................... 7

iv

 INTRODUCTION
This case is unworthy of certiorari review, at the very least for the extreme and
unreasonable delay in which this case was presented. Last April, Alabama
legislatively enacted a prospective procedural change to the manner in which capital
defendants are sentenced. Petitioner Vernon Madison, whose third capital trial ended
in a jury recommendation of life without parole but whom the trial court ultimately
sentence to death, filed a challenge to the constitutionality of his death sentence in
the Alabama Supreme Court on January 24, 2018—less than thirty-one hours before
his scheduled execution. Beyond its lack of merit, the petition was procedurally
defective, as it was both untimely and filed in an improper court. The Alabama
Supreme Court quickly denied the petition. Pet. App. A.
Madison now asks this Court to grant certiorari review of an administrative
decision of the state supreme court that rested on state procedural and equitable
grounds. Rule 8(d)(1) of the Alabama Rules of Appellate Procedure provides that the
Alabama Supreme Court “shall at the appropriate time enter an order fixing a date
of execution” and “may make other appropriate orders upon disposition of the appeal
or other review.” It does not provide an avenue for postconviction challenges to the
constitutionality of the death penalty not raised in any lower court. Simply put,
Madison’s petition was filed with disregard for the state procedural rules. This Court
faced a similar challenge from Thomas Arthur, another Alabama death row inmate,
in November 2016 and denied certiorari. Arthur v. Alabama, 137 S. Ct. 831 (2017)
(mem.). The Court should do likewise in this case.

 Finally, even if there were no procedural obstacles to review, Madison’s claim
is meritless. Madison’s spends the majority of his petition discussing the problems of
judicial override, Pet 8-17, but that is off-point. Apart from the fact that this Court
has held that judicial sentencing is constitutional, see Harris v. Alabama, 513 U.S.
504 (1995), Madison largely fails to mention that the 2017 Act specifically stated that
this legislative decision to end judicial sentence in capital cases did not apply
retroactively to inmates, such as Madison, who were sentenced to death before the
effective date of the Act.

A state legislative decision concerning the retroactive

application of a state sentencing statute does not provide a federal constitutional
question sufficient for certiorari review.

2

 STATEMENT OF THE CASE
On April 18, 1985, Cpl. Julius Schulte, a Mobile police officer, responded to a
domestic disturbance between Vernon Madison and his girlfriend, Cheryl Green. As
Cpl. Schulte sat in his patrol car, Madison crept up on him, shot him twice in the back
of the head at point-blank range, then shot Green in the back while she attempted to
shield her eleven-year-old child from the gunfire. Madison v. State, 718 So. 2d 90, 94,
97 (Ala. Crim. App. 1997).
Madison was thrice tried and convicted of capital murder. Madison v. State,
545 So. 2d 94 (Ala. Crim. App. 1987); Madison v. State, 620 So. 2d 62 (Ala. Crim. App.
1992); Madison, 718 So. 2d 90; aff’d, Ex parte Madison, 718 So. 2d 104 (Ala. 1998);
cert. denied, Madison v. Alabama, 119 S. Ct. 521 (1998) (mem.). After the first two
trials, the jury recommended death, and the trial court followed that recommendation
and sentenced Madison to death. After the final trial, however, the jury recommended
life without parole by a vote of 8-4, but the court, after considering that
recommendation, again sentenced Madison to death.
On April 11, 2017, Alabama enacted a law prospectively abolishing judicial
sentencing in capital cases. 2017 Ala. Laws Act 2017-131 (“the Act”). Resp’t App. A
By its terms, the Act does not apply to any defendant convicted and sentenced prior
to its enactment. Id. § 2 (“This act . . . shall not apply retroactively to any defendant
who has previously been convicted of capital murder and sentenced to death prior to
the effective date of this act”). All that the Act did was effect a prospective procedural
change to the manner in which Alabama imposes sentences in capital cases, removing

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 the final weighing of aggravating and mitigating circumstances by the trial judge and
making the jury’s penalty-phase vote, heretofore a recommendation, binding. The
death

penalty

remains

constitutional

in

Alabama,

distinguishing

these

circumstances from those recently faced in Connecticut when that state prospectively
abolished capital punishment. See State v. Santiago, 122 A.3d 1 (Conn. 2015).
Since his third trial, Madison has sought relief at all levels. On November 6,
2017, this Court granted the State’s petition for writ of certiorari, finding that the
state court’s determination that Madison was competent to be executed was not
unreasonable. Dunn v. Madison, 138 S. Ct. 9 (2017). Two days later, the State moved
the Alabama Supreme Court to set Madison’s long-overdue execution. Madison filed
a response on November 9, though he raised no challenge concerning the Act at that
time. Resp’t App. B. On November 16, the Alabama Supreme Court granted the
State’s motion and set Madison’s execution date for January 25, 2018.
On January 24—less than thirty-one hours before his scheduled execution, and
288 days after the Act went into effect—Madison filed a “petition for relief from
unconstitutional sentence” in the Alabama Supreme Court, contending that his death
sentence had been invalidated by the prospective procedural change implemented by
the Act. Resp’t App. C. This petition was baseless, but more importantly, it was
procedurally defective. As such, five hours later, the Alabama Supreme Court
correctly denied the petition. Pet. App. A.

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 REASONS FOR DENYING THE PETITION
I.

Madison seeks certiorari review of a decision resting solely on state
procedural and equitable grounds.
Madison asks this Court to grant certiorari review of a decision that was

properly dismissed on state procedural and equitable grounds. He attempted to bring
his eleventh-hour petition before the Alabama Supreme Court by citing Rules 2(b)
and 8(d)(1) of the Alabama Rules of Appellate Procedure and section 12-2-2 of the
Code of Alabama (1975). Resp’t App. C at 2. These provisions did not, however, create
a proper vehicle for his challenge.
Section 12-2-2 states:
The justices of the Supreme Court shall have authority to issue writs of
certiorari and to grant injunctions and stays of execution of judgment,
subject to the limitations prescribed by this code and the Alabama Rules
of Appellate Procedure, as judges of the circuit courts are authorized to
grant the same.
This section does not vest in the Alabama Supreme Court original jurisdiction over
petitions such as Madison’s. On the contrary, the Alabama Constitution of 1901 vests
the court with original jurisdiction of cases and controversies only “as provided by
this Constitution.” ALA. CONST. 1901, art. VI, § 140(b)(1). This limitation is key,
because absent an explicit constitutional grant of authority to present such claims to
the Alabama Supreme Court in the first instance, the court’s original jurisdiction is
limited to the issuance of “such remedial writs or orders as may be necessary to give
it general supervision and control of courts of inferior jurisdiction.” Id. art. VI,
§ 140(b)(2). The court’s appellate jurisdiction is “as may be provided by law.” Id. art.
VI, § 140(c).

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 Here, Madison’s petition failed to come within the original jurisdiction of the
Alabama Supreme Court, as he failed to identify a constitutional provision granting
that court original jurisdiction. See Ex parte Evett, 89 So. 2d 88, 90 (Ala. 1956)
(acknowledging that “the Constitution does not invest the Supreme Court with
original jurisdiction in criminal actions”); see also Worthington v. Worthington, 111
So. 224, 449 (Ala. 1927) (“[T]he jurisdiction of this court is in general revisory, and
appellate only, with the exceptions named in the Constitution, and this motion does
not come within any of the exceptions mentioned in the Constitution.”). In Russo v.
Alabama Department of Corrections, 149 So. 3d 1079, 1081–82 (Ala. 2014), the
Alabama Supreme Court recognized the constitutional limitations on its original
jurisdiction, barring relief where an action was not first filed in the circuit court—for
example, as in Madison’s case. In other words, Madison had no standing to raise a
constitutional claim in the Alabama Supreme Court in the first instance, as that court
is governed by strict discretionary review and extraordinary application rules.1 See
ALA. R. APP. P. 21 and 39; see also Ex parte Williams, 795 So. 2d 785, 787 n.1 (Ala.
2001) (recognizing that certiorari review is at discretion of Alabama Supreme Court,
even in cases where sentence of death was imposed); cf. Smith v. Jones, 256 F.3d 1135
(11th Cir. 2001) (recognizing Alabama Supreme Court’s certiorari review is
discretionary).

1. Assuming arguendo that Madison could seek an original writ of habeas corpus in the Alabama
Supreme Court, such relief would be governed by Rule 21 of the Alabama Rules of Appellate
Procedure, which Madison did not cite to the Alabama Supreme Court as a basis for his request.

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 Moreover, Madison is not seeking issuance of a writ or remedial order involving
the supervision or control of an inferior court, as he failed to first present the issue to
any lower court. While section 12-2-2 grants the Alabama Supreme Court power to
issue writs of certiorari, Madison’s petition was necessarily silent as to which court
such a writ would be directed. Nor could Madison rely on the common-law writ of
certiorari, which is an appropriate method to have the courts determine an action
only when there is no other prescribed method. Alabama has a prescribed method for
seeking postconviction relief from an allegedly unconstitutional sentence: a petition
properly filed in the circuit court pursuant to Rule 32 of the Alabama Rules of
Criminal Procedure. ALA. R. CRIM. P. 32.1(a), (c), 32.4. If Madison truly believed that
the Act’s prospective procedural change rendered his death sentence invalid, then he
could have filed a Rule 32 petition within six months of the Act’s effective date. See
ALA. R. CRIM. P. 32.2(c). He could have made mention of this claim in his opposition
to the State’s motion to set an execution date. Instead, Madison waited 288 days—
more than nine months—and filed a last-minute petition in the wrong court in a
blatant attempt to stop his execution by embroiling the state court in a meritless
proceeding.
The rules of appellate procedure that Madison cited below offer him no aid.
Rule 2(b) provides that “[i]n the interest of expediting decision, or for other good cause
shown,” an appellate court may suspend the requirements of the Rules of Appellate
Procedure. Rule 8(d)(1) states:
When pronouncing a sentence of death, the trial court shall not set an
execution date, but it may make such orders concerning the transfer of

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 the inmate to the prison system as are necessary and proper. The
supreme court shall at the appropriate time enter an order fixing a date
of execution, not less than 30 days from the date of the order, and it may
make other appropriate orders upon disposition of the appeal or other
review. The supreme court order fixing the execution date shall
constitute the execution warrant.
Neither rule, alone or in combination, justifies or excuses Madison’s state petition. In
particular, Rule 8(d) governs the issuance of execution warrants—it does not grant
the Alabama Supreme Court new ways to exercise original jurisdiction. There is no
provision in Rule 8(d) for the Alabama Supreme Court to grant relief from a
conviction or sentence, as administrative action is predicated “upon disposition of the
appeal or other review.” Because Rule 8(d)(1) is administrative in nature and is
operable only “upon disposition of the appeal or other review,” Madison could not
vindicate his constitutional claim by presenting it directly to the Alabama Supreme
Court pursuant to Rule 8(d).
For reasons of federalism and comity, this Court should decline to exercise its
certiorari jurisdiction because the state court’s judgment rests upon on an
independent and adequate state law ground. See, e.g., Berry v. Mississippi, 552 U.S.
1007 (2007) (mem.); Wilson v. Loew’s Inc., 355 U.S. 597 (1958); see also Beard v.
Kindler, 558 U.S. 53 (2009); Coleman v. Thompson, 501 U.S. 722 (1991). As Rule 8(d)
could not provide a legal vehicle for Madison to challenge the constitutionality of his
sentence after the Act, Madison has not presented the merits of his claim in the
appropriate form to provide Alabama’s judiciary a merits review, and this claim does
not merit certiorari.

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 II.

The non-retroactive procedural change to Alabama’s capital
sentencing scheme put in place by the Act did not render sentences
imposed by judicial override unconstitutional.
Beyond the procedural defects in Madison’s state petition, which strongly

counsel against certiorari, the constitutional claim is meritless. The Act, by its terms,
provides a prospective procedural change in capital sentencing. It does not add or
remove any penalty from the sentencer’s consideration—all it does it make the jury’s
sentencing recommendation binding.
A useful counterpoint to Alabama’s procedural change is Connecticut’s
substantive change. Connecticut abolished capital punishment on April 25, 2012, by
legislation with prospective effect: no defendants could be sentenced to death from
that point onward, but those inmates with death sentences would still be subject to
that punishment. Santiago, 122 A.3d at 7–8. On review, the Connecticut Supreme
Court held that prospective abolition violated the state’s constitutional prohibition
against cruel and unusual punishment. Id. at 9. The total abolition of the death
penalty in Connecticut constituted a substantive change in the law. By contrast, the
change wrought to Alabama’s capital sentencing scheme by the Act is merely
procedural. The death penalty remains a legal, proper sentence for those convicted of
capital murder. All along, Alabama capital juries have been tasked with finding an
aggravating circumstance necessary to make defendants death-eligible, and judges
have been obligated to consider their sentencing recommendations. See Ex Parte
Bohannon, 222 So. 3d 525, 532 (Ala. 2016) (“because in Alabama a jury, not the judge,
determines by a unanimous verdict the critical finding that an aggravating

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 circumstance exists beyond a reasonable doubt to make a defendant death-eligible,
Alabama's capital-sentencing scheme does not violate the Sixth Amendment.”). The
only procedural change is that as of April 11, 2017, these jury recommendations are
binding in new capital trials.
The flip side of Madison’s claim reveals the absurdity of his position. If, as
Madison suggests, the Act must be given retroactive effect to invalidate his death
sentence, then those capital defendants who received life sentences as a result of jury
override must in turn be sentenced to death. This cannot be.
Further, Madison’s challenge to the Alabama Legislature’s decision to make
state law changes to Alabama’s capital sentencing statute (that were not mandated
by this Court or the federal constitution) non-retroactive is meritless. State law
changes cannot provide the basis for federal retroactivity relief. Here, the decision to
limit the benefit of these later changes to state law does not implicate either the Equal
Protection Clause or the Eighth Amendment. For example, in the federal habeas
context, a state law ruling concerning retroactive application of a state sentencing
statute generally provides no grounds for certiorari jurisdiction.

See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (emphasizing that “it is not the province of a
federal habeas court to reexamine state-court determinations on state-law
questions[] . . .” and that “a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”) (citing 28 U.S.C. §
2241; and Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam)); Wilson v. Corcoran,
562 U.S. 1, 5 (2010) (holding again that “it is only noncompliance with federal law

10

 that renders a State’s criminal judgment susceptible to collateral attack in the federal
courts.” (citing Estelle, 502 U.S. at 67 (citation and internal quotation omitted)).
Finally, the imposition of death in Madison’s case (after all three trials) was
neither arbitrary nor capricious. Madison executed a police officer who was sitting in
his patrol car, then turned the gun on his girlfriend. He fired without regard for the
safety of her child or anyone else in the neighborhood. Madison’s crimes—capital
murder and attempted murder—were cold-blooded, and his punishment is entirely
appropriate. This claim does not merit certiorari.

III.

Judicial override does not run afoul of Hurst v. Florida or Ring v.
Arizona.
As a final claim, Madison argues that judicial override violates the rule this

Court announced in Hurst v. Florida, 136 S. Ct. 616 (2016). Madison fails to
acknowledge that Hurst was merely an application of Ring v. Arizona, 536 U.S. 584
(2002), to Florida’s capital scheme, and so announced no new rule. Alabama’s capital
sentencing statues were and are constitutional under Ring and Hurst, and this
Court’s finding that Alabama’s capital scheme, including the provision at that time
that provided for judicial sentencing, was constitutional has not been overturned. See
Harris v. Alabama, 513 U.S. 504 (1995). In fact, this Court was squarely presented
with a Hurst challenge more than a year ago and denied certiorari. Bohannon v.
Alabama, 137 S. Ct. 831 (2017) (mem.). While “[t]he denial of a writ of certiorari
imports no expression of opinion upon the merits of the case,” United States v. Carver,
260 U.S. 482, 490 (1923), Bohannon presented a far better vehicle to consider the

11

 issue than Madison’s eleventh-hour, procedurally defective claim. It should come as
no surprise that Madison neglects to mention Bohannon, despite the fact that he and
Bohannon share counsel. This claim does not merit certiorari.

12

 CONCLUSION
Wherefore, for the foregoing reasons, Respondent respectfully requests that
this Court deny Madison’s petition for writ of certiorari.
Respectfully submitted,
Steve Marshall
Attorney General
BY—
s/ James Roy Houts*
James R. Houts
Deputy Attorney General
Attorney of Record*

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