WINDOM, Presiding Judge.
Jeffrey Lee appeals from the circuit courts summary dismissal of his second postconviction petition filed pursuant to Rule 32, Ala. R. Crim. P., in which he challenged his three capital-murder convictions and sentences of death.
Lee was convicted of two counts of capital murder for killing Jimmy Ellis and Elaine Thompson during the course of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one count of capital murder for killing two people, Ellis and Thompson, by one act or pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975. He was also convicted of attempted murder for shooting Helen King during the robbery. At the conclusion of the penalty-phase of the trial, the jury recommended, by a vote of 7 to 5, that the circuit court sentence Lee to life in prison without the possibility of parole. The circuit court considered but rejected the jurys recommendation and sentenced Lee to death.
On October 26, 2001, on direct appeal, this Court remanded Lees case with instructions for the circuit court to amend its sentencing order. Lee v. State, 898 So.2d 790 (Ala. Crim. App. 2001). While the cause was on remand to the circuit court, the Supreme Court of the United States issued its opinion in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which applied its earlier decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to capital cases and held that defendants facing a sentence of death are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment, e.g., a jury finding regarding the existence of an aggravating circumstance. Thereafter, the circuit court filed its return to remand. At that point, this Court ordered the parties to file supplemental briefs addressing the applicability of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to [Lees] case. Lee, 898 So.2d at 858. After the parties filed their supplemental briefs, this Court affirmed Lees capital-murder convictions and sentences of death. Regarding Ring, this Court held:
In this case, the trial court found that one aggravating circumstance existed-the appellant committed the capital offenses while he was engaged in the commission of a robbery or an attempted robbery. See § 13A-5-49(4), Ala. Code 1975. Because the jury convicted [Lee] of the capital offense of robbery-murder, that statutory aggravating circumstance was proven beyond a reasonable doubt. Therefore, in this case, the jury, and not the judge, determined the existence of the aggravating circumstance necessary for imposition of the death penalty. Ring, 536 U.S. at 609, 122 S.Ct. at 2443. Furthermore, Ring and Apprendi do not require that a jury weigh the aggravating circumstances and the mitigating circumstances. Ex parte Waldrop, 859 So.2d 1181, 1190 (Ala. 2002). Therefore, there was not a Ring violation in this case.
Lee, 898 So.2d at 858. On February 6, 2004, the Alabama Supreme Court denied Lees petition for a writ of certiorari. On October 12, 2004, the Supreme Court of the United States also denied Lees petition for a writ of certiorari.
In 2005, Lee filed his first Rule 32 petition in which he argued, among numerous other things, that his death sentences were imposed in violation of the Supreme Courts decision in Ring. In April of that year, Lee filed an amended Rule 32 petition. In August of 2007, the circuit court issued an order summarily dismissing Lees Rule 32 petition. On October 9, 2009, this Court affirmed the circuit courts summary dismissal of Lees Rule 32 petition. Thereafter, on February 19, 2010, the Alabama Supreme Court denied Lees petition for a writ of certiorari seeking review of this Courts affirmance.
According to Lee, on October 21, 2010, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the Federal District Court for the Southern District of Alabama. In his petition, Lee reasserted his Ring claim. On May 30, 2012, the district court denied Lees petition. On August 1, 2013, the United States Court of Appeals for the Eleventh Circuit affirmed the district courts decision. The Supreme Court of the United States denied Lees petition for a writ of certiorari.
On January 12, 2016, after the Supreme Court of the United States had denied Lees petition for a writ of certiorari, it issued its decision in Hurst v. Florida, 577 U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). [I]n Hurst [, the Court] applied its holding in Ring to Floridas capital-sentencing scheme and held that Floridas capital-sentencing scheme was unconstitutional because, under that scheme, the trial judge, not the jury, made the findings necessary to impose the death penalty. Ex parte Bohannon, 222 So. 3d 525, 531 (Ala. 2016) (quoting Hurst, 577 U.S. ----, 136 S.Ct. at 622 ).
On April 28, 2016, Lee filed a second Rule 32 petition in the circuit court. In his petition, Lee argued that Alabamas capital-sentencing scheme is unconstitutional under Hurst. On June 16, 2016, the State filed a motion to dismiss Lees petition. In its motion, the State argued that Lees petition was procedurally barred under Rule 32.2(b), Ala. R. Crim. P., because it was successive, and under Rule 32.2(a)(4), Ala. Crim. App., because Lees claim was raised and addressed on direct appeal. The State also argued that Hurst did not apply retroactively to a collateral challenge to a death sentence. Finally, the State argued that Lees Hurst claim was facially without merit. On July 29, 2016, Lee filed an opposition to the States motion to dismiss. On August 5, 2016, the circuit court granted the States motion and dismissed Lees petition. Lee appealed.
I.
On appeal, Lee first argues that the circuit courts order dismissing his Rule 32 petition did not reflect that courts independent judgment; therefore, the order must be reversed. Specifically, Lee argues that the circuit court adopted as its order a proposed order filed by the State. According to Lee, the order prepared by the State did not address all the arguments he had raised in his brief opposing dismissal. He also argues that the courts order incorrectly characterizes one of his arguments. Thus, Lee concludes the circuit courts order was not the product of the circuit courts independent judgment and must be reversed. This Court disagrees.
Recently, this Court explained:
" Alabama courts have consistently held that even when a trial court adopts verbatim a partys proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous. McGahee v. State, 885 So.2d 191, 229-30 (Ala. Crim. App. 2003). While the practice of adopting the states proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Bell v. State, 593 So.2d 123, 126 (Ala. Crim. App. 1991). [T]he general rule is that, where a trial court does in fact adopt the proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court. Ex parte Ingram, 51 So.3d 1119, 1122 (Ala. 2010). Only when the record before this Court clearly establishes that the order signed by the trial court denying postconviction relief is not the product of the trial courts independent judgment will the circuit courts adoption of the States proposed order be held erroneous. Ex parte Jenkins, 105 So.3d 1250, 1260 (Ala. 2012).
For example, in Ex parte Ingram, supra, the circuit court adopted verbatim the States proposed order summarily dismissing Robert Shawn Ingrams Rule 32 petition. In the order, the court stated that it had considered the events within the personal knowledge of the Court and that it had presided over Ingrams capital murder trial and personally observed the performance of both lawyers throughout Ingrams trial and sentencing." Ex parte Ingram, 51 So.3d at 1123 (citation and emphasis omitted). However, the judge who had summarily dismissed the petition had not, in fact, presided over Ingrams trial and had no personal knowledge of the trial. The Alabama Supreme Court described these errors in the courts adopted order as the most material and obvious of errors, 51 So.3d at 1123, and patently erroneous, 51 So.3d at 1125, and concluded that the errors undermine[d] any confidence that the trial courts findings of fact and conclusions of law [we]re the product of the trial judges independent judgment. 51 So.2d at 1125.
"In Ex parte Scott, [Ms. 1091275, March 18, 2011] --- So. 3d ---- (Ala. 2011), the circuit court adopted verbatim as its order the States answer to Willie Earl Scotts Rule 32 petition. The Alabama Supreme Court stated:
[A]n answer, by its very nature, is adversarial and sets forth one partys position in the litigation. It makes no claim of being an impartial consideration of the facts and law; rather it is a work of advocacy that exhorts one partys perception of the law as it pertains to the relevant facts.
Ex parte Scott, --- So. 3d at ----. The Court then held that [t]he trial courts verbatim adoption of the States answer to Scotts Rule 32 petition as its order, by its nature, violates this Courts holding in Ex parte Ingram that the findings and conclusions in a courts order must be those of the court itself. Ex parte Scott, --- So. 3d at ----.
R eeves v. State, 226 So. 3d 711, 724 (Ala. Crim. App. 2016).
Unlike in Ex parte Ingram and Ex parte Scott, the record in this case does not clearly establish that the circuit courts order dismissing Lees petition was anything but the courts own independent judgment. The circuit courts order contains no patently erroneous statements as was the case in Ex parte Ingram, and the circuit court adopted a proposed order as opposed to an answer. Further, after reviewing the record, this Court concludes that the circuit courts order reflects that courts independent judgment. Therefore, this Court holds that the circuit court did not err by adopting the States proposed order dismissing Lees Rule 32 petition.
Moreover, even if the circuit court erred in adopting the States proposed order, that error, if any, would be harmless beyond a reasonable doubt. See Rule 45, Ala. R. App. P. As discussed below, the claim raised in Lees Rule 32 petition was procedurally barred under Rule 32.2(a)(4), and under Rule 32.2(b), Ala. R. Crim. P. Cf. Peraita v. State, 897 So.2d 1161, 1185 (Ala. Crim. App. 2003) (holding that the circuit courts erroneous determination was harmless when there was a valid alternative reason for the circuit courts action); United States v. Abbas, 560 F.3d 660, 666-67 (7th Cir. 2009) (holding that a trial courts error is harmless when it had a valid alternative holding); Shedden v. Principi, 381 F.3d 1163, 1168 (Fed. Cir. 2004) (same); Barton v. Gammell, 143 Ga.App. 291, 238 S.E.2d 445, 448 (1977) (holding that an erroneous finding is harmless when the trial courts decision is supported by other grounds). Because Lees claim in his Rule 32 petition was procedurally barred under Rule 32.2(a)(4) and under Rule 32.2(b), Ala. R. Crim. P., the error, if any, in the adoption of the States proposed order was harmless. Jenkins v. State, 105 So.3d 1234, 1242 (Ala. Crim. App. 2011). Therefore, Lee is not entitled to any relief on this issue.
II.
Lee next argues that the circuit court erred in finding that Hurst does not apply retroactively to his case. According to Lee, Hurst did not announce a new rule, but instead, applied the Rule established in Ring v. Arizona, 536 U.S. 584, 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), to new facts. Therefore, the holding in Hurst is applicable and can be raised in his collateral proceedings. The State, not surprisingly, agrees that Hurst merely applied the rule of law established in Ring and Apprendi but argues that, because Ring and Apprendi were decided before Lees direct appeal became final, his claim is procedurally barred. See Rule 32.2(a)(4) and 32.2(b), Ala. R. Crim. P. This Court agrees with the State.
It is well settled that a new case applying an old rule will not operate to exempt a petitioner from the application of the procedural bars established in Rule 32.2, Ala. R. Crim. P. Clemons v. State, 123 So.3d 1, 12 (Ala. Crim. App. 2012) (Because the Supreme Court did not establish new law ... but rather applied law that was established long before Clemonss trial and before his first Rule 32 petition, Clemonss claim was procedurally barred because he could have raised it at trial, on appeal, Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P., or in his first Rule 32 proceedings, 32.2(b), Ala. R. Crim. P.); Fitts v. Eberlin, 626 F.Supp.2d 724, 733 (N.D. Ohio 2009) (Given that no new rule exists that applies to [the petitioners] case, [his] plea for equitable tolling ... must fail.).
Here, the parties agree that the Supreme Court did not establish a new rule in Hurst; rather, [t]he Court in Hurst did nothing more than apply its previous holdings in Apprendi and Ring to Floridas capital-sentencing scheme. (Lees brief, at 18 (quoting State v. Billups, 223 So. 3d 954, 963 (Ala. Crim. App. 2016)).) Both this Court and the Alabama Supreme Court have recognized that Hurst merely applied the rule established in Apprendi and Ring to new facts: the State of Floridas death-penalty scheme. See State v. Billups, 223 So. 3d at 963 ; Phillips v. State, [Ms. CR-12-0197, Oct. 21, 2016] --- So. 3d ----, ---- (Ala. Crim. App. 2016); Ex parte Bohannon, 222 So. 3d at 532 ( Hurst applies Ring and reiterates that a jury, not a judge, must find the existence of an aggravating factor to make a defendant death-eligible.). Because the decision in Hurst did not create a new rule, Lees Ring / Hurst claim was subject to the procedural bars contained in Rule 32.2, Ala. R. Crim. P. Clemons, 123 So.3d at 12. Specifically, Lees Ring / Hurst claim was procedurally barred under Rule 32.2(a)(4), Ala. R. Crim. P., because it was raised on direct appeal and in a previous Rule 32 petition. Lee v. State, 898 So.2d 790, 858 (Ala. Crim. App. 2001). Further, because Lee raised a Ring claim in his previous Rule 32 petition, his current Ring / Hurst claim is successive and, thus, procedurally barred under Rule 32.2(b), Ala. R. Crim. P.
Lee, however, argues that his Ring / Hurst claim is not subject to the procedural bars contained in Rule 32.2, Ala. R. Crim. P., because his claim implicates the circuit courts jurisdiction. Lee is incorrect. In Hunt v. State, 940 So.2d 1041, 1057 (Ala. Crim. App. 2005), the petitioner argue[d] that the procedural default rules in Rule 32, Ala. R. Crim. P., do not exclude claims that raise a jurisdictional defect and that the Apprendi [/ Ring ], claim, he ... raise[d] [was] a jurisdictional issue; therefore, the circuit court erroneously denied relief. This Court disagreed and held that the decisions in Apprendi and Ring do not apply retroactively and that the circuit court properly denied relief. Hunt, 940 So.2d at 1057. Similarly, the Courts decision in Hurst, which merely applied its decision in Ring to a new set of facts, does not implicate the circuit courts jurisdiction and thus does not excuse the application of the procedural bars contained in Rule 32.2, Ala. R. Crim. P.
Because the Supreme Court did not establish new law in [ Hurst ] but rather applied law that was established ... before [Lees appeal became final] and before his first Rule 32 petition, [Lees] claim was procedurally barred because [it was raised] on appeal, Rule 32.2(a) ( [4] ) and [because it was raised] in his first Rule 32 proceedings, 32.2(b), Ala. R. Crim. P. Clemons, 123 So.3d at 12. Therefore, the circuit court did not err by summarily dismissing Lees successive Rule 32 petition.
Further, even if the Hurst decision did announce a new rule, the circuit court correctly dismissed Lees petition because that rule would not apply retroactively and, thus, would not be applicable in Lees postconviction proceedings. In Reeves v. State, 226 So. 3d 711, 757 (Ala. Crim. App. 2016), this Court explained:
The United States Supreme Courts opinion in Hurst was based solely on its previous opinion in Ring, an opinion the United States Supreme Court held did not apply retroactively on collateral review to cases that were already final when the decision was announced. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Because Ring does not apply retroactively on collateral review, it follows that Hurst also does not apply retroactively on collateral review. Rather, Hurst applies only to cases not yet final when that opinion was released, such as Johnson, supra, a case that was still on direct appeal (specifically, pending certiorari review in the United States Supreme Court) when Hurst was released. Reevess case, however, was final in 2001, 15 years before the opinion in Hurst was released. Therefore, Hurst is not applicable here.
For the forgoing reasons, the circuit court correctly dismissed Lees Rule 32 petition, and its judgment is affirmed.
AFFIRMED.
Welch, Kellum, Burke, and Joiner, JJ., concur.
This Court remanded this case to the circuit court with instructions that the trial court amend its sentencing order to comply with the requirements of Ex parte Taylor, 808 So.2d 1215 (Ala. 2001).