Faheem Rasheed Shabazz v. State of Alabama (Appeal from Randolph Circuit Court: CC-18-63.60)

Rel: February 21, 2025

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Alabama Court of Criminal Appeals
OCTOBER TERM, 2024-2025
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CR-2023-0409
_________________________

Faheem Rasheed Shabazz

v.

State of Alabama

Appeal from Randolph Circuit Court
(CC-18-63.60)

On Return to Remand

MINOR, Judge.

In this appeal, we hold that, as the State concedes, the Randolph

Circuit Court erred when it summarily dismissed Faheem Rasheed

Shabazz's petition for postconviction relief under Rule 32, Ala. R. Crim.
CR-2023-0409

P., without giving Shabazz the chance to amend his petition. We thus

reverse the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

In September 2017, Jimmy Lamar McCowan rented a hotel room.

McCowan testified that Shabazz entered the room with a gun and told

him he was going to "blow his head off." (C. 122.) Video footage suggested

that Shabazz was in McCowan's room for more than 40 minutes.

McCowan testified that Shabazz shot him in the stomach. Shabazz

contends in his petition that McCowan invited him into the room, that

Shabazz did not have a gun, and that eventually the two men struggled

over the gun and that Shabazz shot McCowan in self-defense.

Shabazz's case went to trial in June 2021. After the close of the

evidence and while the jury was deliberating, Shabazz and the State

reached an agreement under which Shabazz pleaded guilty to attempted

murder and was sentenced to 15 years' imprisonment. 1 Shabazz did not

appeal his conviction or sentence.

1Under the plea agreement, the State agreed to dismiss a first-
degree-burglary charge against Shabazz.
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Shabazz timely filed a Rule 32 petition in June 2022. 2 As best we

can discern, Shabazz asserted these claims: (1) that his guilty plea had

been involuntarily made because the circuit court (a) had not informed

him that he was waiving certain rights, (b) had not ensured that he

understood the nature of the charge, (c) had not accurately informed him

about the consequences of his plea, (d) had denied him the right to

present a defense and his version of the facts, (e) had denied him a

hearing on his assertion that he was immune from prosecution, and (f)

had denied his motion for discovery and inspection of electronically

stored information and evidence; (2) that his guilty plea had been

involuntarily made because, he said, his counsel had been ineffective for

not adequately investigating the case and seeking to investigate the

contents of McCowan's cell phone and laptop computer, which Shabazz

asserted were in the State's possession for several months; and (3) that

2Because the record did not show that Shabazz had paid the filing

fee or that the circuit court had granted a request to proceed in forma
pauperis, on June 25, 2024, this Court remanded this case to the circuit
court for that court to make findings about whether, before the court
ruled on Shabazz's petition, it had granted a request to proceed in forma
pauperis or Shabazz had paid the filing fee. See, e.g., Whitson v. State,
891 So. 2d 421, 422 (Ala. Crim. App. 2004). The record on return to
remand shows that Shabazz paid the required filing fee.
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his rights had been violated because, he said, he had been denied

transcripts of the hearing on his pretrial motion for discovery and of his

jury trial.

In July 2022, Shabazz moved for leave to amend his petition to

include these claims: (4) that his guilty plea had been involuntarily made

because, he said, it had been based on false statements from the attorney

for the State and an investigator for the State that the State did not have

and had never had McCowan's cell phone or laptop computer or evidence

of social-media activity from McCowan's account; 3 and (5) that his trial

counsel had been ineffective for not seeking funds to hire a digital-

forensic-data-recovery expert who, Shabazz alleged, would have

extracted data from McCowan's devices that would have supported

Shabazz's defense. 4

3Shabazz alleged that McCowan had testified at trial that police

officers had taken his cell phone and kept it for months. He also alleged
that a September 2017 evidence log from the Roanoke Police Department
listed McCowan's laptop computer and phone charger.

4Shabazz named the expert that he contends his counsel should

have hired, and Shabazz included detailed allegations about the evidence
he asserts that the expert would have discovered and how that evidence
would have supported Shabazz's defense.
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In August 2022, the State responded to the petition and moved to

dismiss it. The State asserted that the petition was untimely, that the

claims in it were insufficiently pleaded, and that Shabazz's claims were

precluded because Shabazz could have raised them at trial or on appeal.

A week later, Shabazz filed a second motion for leave to amend,

seeking to add these claims: (6) that, in response to Shabazz's direct

questioning, the circuit court had misinformed him about how much of

his 15-year sentence he would have to serve; and (7) that his trial counsel

had told him that he would be eligible for correctional-incentive time and

that he could be eligible for parole consideration in 5 years. Shabazz

included affidavits in support of these claims.

In September 2022, Shabazz replied to the State's August 2022

response to his petition. In October 2022, Shabazz filed a third motion for

leave to amend his petition to include the claim (8) that his trial counsel

had been ineffective for not objecting to the circuit court's failure to hold

a pretrial hearing on Shabazz's motion for immunity.

In November 2022, the circuit court granted Shabazz's second

motion for leave to amend his petition. In December 2022, Shabazz

moved for an order (1) granting each of his motions for leave to amend

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his petition and (2) requiring the State to respond to his petition as

amended.

On May 9, 2023, the circuit court entered a judgment specifically

denying Shabazz's December 2022 request to grant his "previous filed

motion to amend." In that same judgment, the circuit court summarily

dismissed Shabazz's petition without explanation. Shabazz timely

appealed.

DISCUSSION

On appeal, Shabazz raises three issues, including that the circuit

court erred in denying his motions for leave to amend. The State concedes

on appeal that this case should be remanded for the circuit court "to

conduct further proceedings regarding Shabazz's claims of ineffective

assistance of counsel as well as the amendments previously filed to his

Rule 32 proceeding." (State's brief, p. 6.) We agree with Shabazz that the

circuit court erred in denying his motions for leave to amend.

In Jones v. State, 185 So. 3d 1142 (Ala. Crim. App. 2014), this Court

considered a Rule 32 petitioner's argument "that under the principles in

Ex parte Rhone, 900 So. 2d 455 (Ala. 2004), and its progeny," the circuit

court erred in denying his motion for leave to amend his petition:

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" 'Amendments to pleadings may be permitted at any
stage of the proceedings prior to the entry of judgment,' Rule
32.7(b), Ala. R. Crim. P., and '[l]eave to amend shall be freely
granted.' Rule 32.7(d), Ala. R. Crim. P. In Ex parte Rhone[,
900 So. 2d 455 (Ala. 2004),] the Alabama Supreme Court held
'that only grounds such as actual prejudice or undue delay will
support a trial court's refusal to allow, or to consider, an
amendment to a Rule 32 petition.' 900 So. 2d at 458.
Subsequently, in Ex parte Jenkins, 972 So. 2d 159 (Ala. 2005),
the Alabama Supreme Court recognized that, although 'the
concepts of "undue delay" and "undue prejudice" ... apply to
the trial court's management of its docket and to the
petitioner's attention to his or her case[, t]hose concepts
cannot be applied to restrict the petitioner's right to file an
amendment clearly provided for in Rule 32.7 simply because
it states a new claim that was not included in the original
petition.' 972 So. 2d at 164. The teachings of Ex parte Rhone
and Ex parte Jenkins have been followed numerous times.
See, e.g., Ex parte Woods, 957 So. 2d 533 (Ala. 2006);
Anderson v. State, 135 So. 3d 994 (Ala. Crim. App. 2013);
Ingram v. State, 103 So. 3d 86 (Ala. Crim. App. 2012); Apicella
v. State, 87 So. 3d 1155 (Ala. Crim. App. 2011); Broadnax v.
State, 987 So. 2d 631 (Ala. Crim. App. 2007); Smith v. State,
961 So. 2d 916 (Ala. Crim. App. 2006); and Wilson v. State,
911 So. 2d 40 (Ala. Crim. App. 2005).

"The record in this case contains no indication that any
undue delay or undue prejudice would have resulted if the
circuit court had granted Jones's request to amend his
petition. Given that the circuit court initially summarily
dismissed Jones's petition only one day after Jones filed his
reply to the State's response in which he requested leave to
amend his petition, permitting Jones to file an amended
petition would have undoubtedly caused a delay in the circuit
court's ruling. However, we cannot say that it would have
caused undue delay. The Alabama Supreme Court has
recognized that it would not be error to refuse an amendment
filed 'on the eve of an evidentiary hearing ... that included new

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claims of which the State had no prior notice and as to which
it was not prepared to defend.' Ex parte Jenkins, 972 So. 2d
at 164. However, Jones's request to amend was not filed on
the eve of an evidentiary hearing. Although it was filed on the
eve of the circuit court's summary dismissal of Jones's
petition, it would have been impossible for Jones to have
known when he timely filed his reply to the State's response
within the time frame set by the circuit court that the circuit
court would summarily dismiss his petition only one day later.
Additionally, a circuit court has discretion to place reasonable
time constraints on the filing of amendments to Rule 32
petitions, and the circuit court here could have set a time limit
for Jones to file an amendment in order to limit the delay in
the proceedings.

"Moreover, this is not a case in which Jones had already
filed multiple amendments or had unreasonably delayed in
requesting to file an amendment. This was Jones's first
request to amend his petition and, although at the time he
requested to amend his petition Jones's petition had been
pending in the circuit court for over a year, all but three
months of that delay was due to (1) the parties litigating the
recusal issue in the appellate courts by petitions for a writ of
mandamus, and (2) the State's four-month delay in
responding to the petition after the appellate litigation had
ended. Jones did request a 90-day extension to file a reply to
the State's response, but, given the length of the original
petition as well as the length of the State's response, we
cannot say that request was in any way unreasonable.
Therefore, under the circumstances in this case, we conclude
that no undue delay would have resulted if the circuit court
had permitted Jones to amend his petition.

"Additionally, as noted above, in his reply to the State's
response, Jones conceded that several of his claims of
ineffective assistance of counsel were insufficiently pleaded,
as the State had argued in its response, and he specifically
requested to be allowed to amend those claims to include the

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CR-2023-0409

factual allegations necessary to satisfy the pleading
requirements. '[A]mendments should be allowed "if necessary
for a full and fair determination on the merits." ' Wilson v.
State, 935 So. 2d 494, 497 (Ala. Crim. App. 2005) (quoting
Allen v. State, 825 So. 2d 264, 268 (Ala. Crim. App. 2001),
aff'd, 825 So. 2d 271 (Ala. 2002)). Allowing Jones to correct the
pleading deficiencies in his petition that he conceded existed
was necessary for a full and fair determination of his claims.
'Although having to respond to an amendment, in any
circumstance, would certainly cause some marginal prejudice
to the State, we cannot say that merely having to respond to
an amendment, alone, constitutes undue prejudice to the
State.' Broadnax v. State, 987 So. 2d 631, 640 (Ala. Crim. App.
2007). Therefore, we also conclude that no undue prejudice
would have resulted if the circuit court had permitted Jones
to amend his petition."

185 So. 3d at 1145-46.

Although the circuit court in November 2022 granted Shabazz's

second motion for leave to amend, the circuit court had not then ruled on

Shabazz's July 2022 and October 2022 motions for leave to amend, and

the State had not responded to those proposed amendments. Seeking

clarification, Shabazz in December 2022 moved the circuit court to grant

his previously filed motions for leave to amend and to order the State to

respond to those amendments. Five months later, with nothing else

having been filed, the circuit court simply denied the December 2022

motion and summarily dismissed the petition.

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As the State concedes, the circuit court erred in its judgment

summarily dismissing the petition without giving Shabazz the chance to

amend his petition. "Because under the circumstances in this case

allowing [Shabazz] to amend his petition would not have caused undue

delay or undue prejudice, the circuit court erred in denying [Shabazz's]

request for leave to amend his petition." Jones, 185 So. 3d at 1148. The

circuit court's judgment is thus due to be reversed. Id.

CONCLUSION

We reverse the judgment of the circuit court and remand this case

for proceedings consistent with this opinion.

REVERSED AND REMANDED.

Windom, P.J., and Kellum, Cole, and Anderson, JJ., concur.

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