Kenneth Eugene Smith v. State of Alabama (Appeal from Jefferson Circuit Court: CC-89-1149.61)

REL: December 8, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
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CR-2023-0594
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Kenneth Eugene Smith

v.

State of Alabama

Appeal from Jefferson Circuit Court
(CC-89-1149.61)

KELLUM, Judge.

The appellant, Kenneth Eugene Smith, who is currently an inmate

incarcerated on death row at Holman Correctional Facility, appeals the

circuit court's summary dismissal of his second petition for postconviction

relief filed pursuant to Rule 32, Ala. R. Crim. P.
CR-2023-0594

In 1988, Smith was indicted for murdering Elizabeth Dorlene

Sennett for pecuniary gain, an offense defined as capital by § 13A-5-

40(a)(7), Ala. Code 1975. In 1989, Smith was convicted of that charge

and sentenced to death. On appeal, after twice remanding the case to the

trial court, this Court found that Smith was entitled to a new trial based

on a violation of the holding in Batson v. Kentucky, 476 U.S. 79 (1986).

See Smith v. State, 588 So. 2d 561 (Ala. Crim. App. 1991), on return to

remand, 620 So. 2d 727 (Ala. Crim. App.), on return to second remand,

620 So. 2d 732 (Ala. Crim. App. 1992).

In 1996, Smith was again convicted of capital murder and

sentenced to death. This Court affirmed his conviction and sentence on

direct appeal. See Smith v. State, 908 So. 2d 273 (Ala. Crim. App. 2000),

writ quashed, 908 So. 2d 302 (Ala.), cert. denied, 546 U.S. 928 (2005). In

doing so, we set out the following facts surrounding Smith's conviction:

"On March 18, 1988, the Reverend Charles Sennett, a
minister in the Church of Christ, discovered the body of his
wife, Elizabeth Dorlene Sennett, in their home on Coon Dog
Cemetery Road in Colbert County. The coroner testified that
Elizabeth Sennett had been stabbed eight times in the chest
and once on each side of the neck, and had suffered numerous
abrasions and cuts. It was the coroner's opinion that Sennett
died of multiple stab wounds to the chest and neck.

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"The evidence established that Charles Sennett had
recruited Billy Gray Williams, who in turn recruited [Kenneth
Eugene] Smith and John Forrest Parker, to kill his wife. He
was to pay them each $1,000 in cash for killing Mrs. Sennett.
There was testimony that Charles Sennett was involved in an
affair, that he had incurred substantial debts, that he had
taken out a large insurance policy on his wife, and that
approximately one week after the murder, when the murder
investigation started to focus on him as a suspect, Sennett
committed suicide."

Smith, 908 So. 2d at 280. Testimony was also presented indicating that

Smith had confessed to his part in the murder and had given a detailed

account of how he and his codefendant, John Forrest Parker, had

obtained access to the victim's home and had beaten and shot her. This

Court issued a certificate of judgment on March 18, 2005.

In 2006, Smith timely filed his first Rule 32 petition for

postconviction relief, attacking his capital-murder conviction and

sentence of death. The circuit court denied that petition, and Smith

appealed. After remanding the case three times, twice by opinion, see

Smith v. State, 160 So. 3d 40 (Ala. Crim. App. 2010), and once by order,

this Court ultimately affirmed, by unpublished memorandum, the circuit

court's order denying the petition.

In 2015, Smith filed a petition for a writ of habeas corpus in federal

court, alleging that his counsel at his capital-murder trial had been

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ineffective. The federal court denied relief, and that denial was affirmed

on appeal. See Smith v. Commissioner, Ala. Dep't of Corr., 850 F. App'x

726 (11th Cir. 2021), cert. denied, Smith v. Hamm, ___ U.S. ___, 142 S.Ct.

1108 (2022).

In August 2022, Smith filed in federal court a 42 U.S.C. § 1983 civil

action against the Commissioner of the Alabama Department of

Corrections, alleging, in part, that the Alabama Department of

Corrections ("DOC") "ha[d] substantially deviated from its Execution

Protocol to the point that [to execute him] would subject Smith to

intolerable pain and torture in violation of the Eighth Amendment."

Smith v. Commissioner, Ala. Dep't of Corr., No. 22-13781, November 17,

2022, (11th Cir. 2022) (not reported in Federal Reporter). That action

was dismissed, and Smith's subsequent request to amend the complaint

was denied. On appeal, the United States Court of Appeals for the

Eleventh Circuit remanded the case to allow Smith to amend the

complaint. Id. In September 2022, while Smith's appeal in the § 1983

action was pending before the Eleventh Circuit Court of Appeals, the

Alabama Supreme Court, at the request of the State, set Smith's

execution for November 17, 2022. Smith moved to stay his execution,

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but the Alabama Supreme Court denied that motion. On November 17,

2022, the State could not execute Smith "because []DOC was unable to

set intravenous lines through which it could inject Mr. Smith with the

lethal drugs." (C. 39.) Smith's § 1983 action remains pending in federal

court. See Smith v. Hamm, No. 2:22-cv-497-RAH, July 5, 2023, (M.D.

Ala. 2023) (not reported in Federal Supplement).

In May 2023, Smith filed a second Rule 32 petition for

postconviction relief -- the petition that is the subject of this appeal. In

the 11-page petition, Smith alleged that a second attempt to execute him,

by any means, would constitute cruel and unusual punishment in

violation of the United States and Alabama Constitutions because, he

said, the failed attempt to execute him in November 2022 had "cause[ed]

him severe and ongoing physical and psychological distress, including

post-traumatic stress disorder." (C. 37.) The State moved that Smith's

petition be dismissed, arguing that his claim was meritless and precluded

by Rule 32.2(b), Ala. R. Crim. P., as successive. Smith filed a written

objection to the State's motion. On August 11, 2023, the circuit court

issued an order summarily dismissing Smith's petition, finding that his

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claim was insufficiently pleaded. Smith timely filed a notice of appeal,

and this appeal was submitted for decision on November 14, 2023.

On appeal, Smith argues that the circuit court erred in summarily

dismissing his petition without first conducting an evidentiary hearing

because, he says, his claim is sufficiently pleaded and not precluded as

successive. For the reasons explained below, we agree with the circuit

court that Smith's claim was insufficiently pleaded, and we also find the

claim to be meritless. Because we affirm the circuit court's judgment on

those grounds, it is unnecessary for us to address whether the claim is

precluded as successive.

As noted above, in his petition, Smith alleged that a second attempt

to execute him, by any means, would constitute cruel and unusual

punishment in violation of the United States and Alabama Constitutions

because, he said, the failed attempt to execute him in November 2022 had

"cause[ed] him severe and ongoing physical and psychological distress,

including post-traumatic stress disorder." (C. 37.) Smith alleged that

before his attempted execution in November 2022, the State had

attempted to execute two other death-row inmates but was unable to do

so for the same reason it had failed to execute him in November 2022 --

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the inability to insert intravenous ("IV") lines in the inmates. Despite

the two previous failed attempts, Smith said, the DOC did no

investigation before his November 2022 attempted execution and was

forced to abort the November 2022 execution "nearly two hours" after

first attempting to insert the IV lines. (C. 43.) Smith then alleged:

"In an unsuccessful attempt to establish IV lines by the
standard procedure, the IV Team jabbed [him] repeatedly,
sliding the catheter needle continuously in and out of his arms
and hands, while ignoring [his] complaints that they were
penetrating his muscles, causing severe pain.

"Having failed to establish IV access by the standard
procedure, the IV Team next tried to do so using a central line
procedure.

"Sometime before midnight, the IV Team returned to
the execution chamber and [he] was informed that the
execution had been aborted.

"Mr. Smith continues to be in a great deal of physical
and emotional pain from the attempted execution in
November.

"[]DOC's failed attempt to execute Smith has had
chronically severe psychological consequences, including
severe post-traumatic stress disorder. In addition to
difficulty sleeping, Smith's symptoms include nightmares,
hypervigilance, hyperarousal, and disassociation (a defense
mechanism to suppress threatening thoughts)."

(C. 44.)

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Rule 32.3, Ala. R. Crim. P., provides that "[t]he petitioner shall have

the burden of pleading ... the facts necessary to entitle the petitioner to

relief." Rule 32.6(b), Ala. R. Crim. P., requires that the petition "contain

a clear and specific statement of the grounds upon which relief is sought,

including full disclosure of the factual basis of those grounds. A bare

allegation that a constitutional right has been violated and mere

conclusions of law shall not be sufficient to warrant any further

proceedings." As this Court noted in Boyd v. State, 913 So. 2d 1113 (Ala.

Crim. App. 2003):

" 'Rule 32.6(b) requires that the petition itself disclose
the facts relied upon in seeking relief.' Boyd v. State, 746 So.
2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not
the pleading of a conclusion 'which, if true, entitle[s] the
petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373
(Ala. Crim. App. 1993). It is the allegation of facts in pleading
which, if true, entitle[s] a petitioner to relief. After facts are
pleaded, which, if true, entitle the petitioner to relief, the
petitioner is then entitled to an opportunity, as provided in
Rule 32.9, Ala. R. Crim. P., to present evidence proving those
alleged facts."

913 So. 2d at 1125.

"The burden of pleading under Rule 32.3 and Rule 32.6(b) is a
heavy one. Conclusions unsupported by specific facts will not
satisfy the requirements of Rule 32.3 and Rule 32.6(b). The
full factual basis for the claim must be included in the petition
itself. If, assuming every factual allegation in a Rule 32
petition to be true, a court cannot determine whether the

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petitioner is entitled to relief, the petitioner has not satisfied
the burden of pleading under Rule 32.3 and Rule 32.6(b). See
Bracknell v. State, 883 So. 2d 724 (Ala. Crim. App. 2003)."

Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).

Smith alleged generally that he had suffered physical pain during

the November 2022 execution attempt when the execution team

"repeatedly" attempted to insert needles in his arms and hands for

"nearly two hours" and that he had told the team that "they were

penetrating his muscles and causing severe pain." However, he did not

allege specifically how many times the team attempted to insert the IV

lines, or exactly how long the attempts continued. He also made only a

bare allegation that he "continues" to suffer physical pain, without

alleging specific facts describing that pain. Finally, he made a bare

allegation that he suffers from post-traumatic stress disorder causing

difficulty sleeping, nightmares, hypervigilance, hyperarousal, and

disassociation, without alleging specific facts regarding how those

symptoms rise to the level of a constitutional violation. Smith's general

assertions in his petition are wholly insufficient to satisfy his burden of

pleading.

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Moreover, Smith's claim is meritless. In Louisiana ex rel. Francis

v. Resweber, 329 U.S. 459 (1947), the defendant was sentenced to death,

and the State of Louisiana attempted to execute that sentence by use of

an electric chair. "The executioner threw the switch but, presumably

because of some mechanical difficulty, death did not result. [The

defendant] was thereupon removed from the chair and returned to

prison. ... A new death warrant was issued by the Governor of

Louisiana." 329 U.S. at 460-61. The defendant then filed a petition for

a writ of habeas corpus alleging, in part, that it would be cruel and

unusual punishment to subject him to a second execution. A plurality of

the United States Supreme Court rejected the argument, stating:

"Petitioner's suggestion is that because he once
underwent the psychological strain of preparation for
electrocution, now to require him to undergo this preparation
again subjects him to a lingering or cruel and unusual
punishment. Even the fact that petitioner has already been
subjected to a current of electricity does not make his
subsequent execution any more cruel in the constitutional
sense than any other execution. The cruelty against which
the Constitution protects a convicted man is cruelty inherent
in the method of punishment, not the necessary suffering
involved in any method employed to extinguish life humanely.
The fact that an unforeseeable accident prevented the prompt
consummation of the sentence cannot, it seems to us, add an
element of cruelty to a subsequent execution. There is no
purpose to inflict unnecessary pain nor any unnecessary pain
involved in the proposed execution. The situation of the

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unfortunate victim of this accident is just as though he had
suffered the identical amount of mental anguish and physical
pain in any other occurrence, such as, for example, a fire in
the cell block. We cannot agree that the hardship imposed
upon the petitioner rises to that level of hardship denounced
as denial of due process because of cruelty."

329 U.S. at 464. If it is not cruel and unusual punishment to execute an

inmate who has been subjected to a current of electricity in a previous

failed execution attempt, then it is certainly not cruel and unusual

punishment to execute an inmate after the failure to insert an IV line in

a previous failed execution attempt.

Indeed, the Ohio Supreme Court so held in State v. Broom, 146 Ohio

St. 3d 60, 51 N.E.3d 620 (2016), in which it rejected an argument that it

would be a violation of the Ohio Constitution to execute Romell Broom

after state officials had been unsuccessful in inserting IV lines in the first

attempted execution.

"Broom has also sought relief under the Ohio
Constitution. Article I, Section 9 of the Ohio Constitution
provides, 'Excessive bail shall not be required; nor excessive
fines imposed; nor cruel and unusual punishments inflicted.'
This court has long held that the Ohio Constitution is a
'document of independent force.' Arnold v. Cleveland, 67 Ohio
St. 3d 35, 616 N.E.2d 163 (1993), paragraph one of the
syllabus. The United States Constitution provides a floor for
individual rights and civil liberties, but state constitutions are
free to accord greater protections. Id. And recently, this court
held for the first time that Article I, Section 9 provides

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protection 'independent of' the Eighth Amendment. In re
C.P., 131 Ohio St. 3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶
59. But we have also noted that cases involving cruel and
unusual punishments are rare, 'limited to those involving
sanctions which under the circumstances would be considered
shocking to any reasonable person.' McDougle v. Maxwell, 1
Ohio St. 2d 68, 70, 203 N.E.2d 334 (1964).

"When the execution team was unable to establish IV
lines, the attempt to execute Broom was halted. Because the
lethal-injection drugs were never introduced into the IV lines,
the execution was never commenced. The state also
demonstrated in the executions that were conducted after
September 2009 that it is committed to following the protocols
as written. Because Broom's life was never at risk since the
drugs were not introduced, and because the state is
committed to carrying out executions in a constitutional
manner, we do not believe that it would shock the public's
conscience to allow the state to carry out Broom's execution.
We therefore conclude that Article I, Section 9 of the Ohio
Constitution does not bar the state from executing Broom's
death sentence."

146 Ohio St. 3d at 73-74, 51 N.E.3d at 633. Similarly, here, based on

Smith's pleadings in his Rule 32 petition, when the execution team was

unable to insert the IV lines, the attempt to execute Smith was aborted

and Smith's life was never at risk because the drugs were never

administered. In addition, in Alabama, "[a] death sentence shall be

executed by lethal injection, unless the person sentenced elects to be

executed by electrocution or nitrogen hypoxia." § 15-18-82.1(a), Ala. Code

1975. In his reply brief, Smith asserts that the State has "moved to

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execute [him] using [nitrogen hypoxia]" (Smith’s reply brief at p. 5, n.2),

and in his § 1983 action in federal court, Smith "sufficiently pleaded that

nitrogen hypoxia will significantly reduce his pain." Smith v.

Commissioner, Ala. Dep't of Corr., No. 22-13781, November 17, 2022

(11th Cir. 2022) (not reported in Federal Reporter). Accordingly, a second

attempt at execution will not be cruel and unusual punishment, and his

claim to the contrary is without merit.

Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to

summarily dismiss a petitioner's Rule 32 petition

"[i]f the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or that no
material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would
be served by any further proceedings ...."

See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);

Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.

State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992). "Summary disposition

is also appropriate when the petition is obviously without merit or where

the record directly refutes a Rule 32 petitioner's claim." Lanier v. State,

296 So. 3d 341, 343 (Ala. Crim. App. 2019). Because Smith's claim is

insufficiently pleaded and meritless, summary disposition of his Rule 32

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petition without an evidentiary hearing was appropriate.

For the foregoing reasons, we affirm the circuit court's summary

dismissal of Smith's second Rule 32 petition.

AFFIRMED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.

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