## Facts

- A Montgomery County grand jury indicted Oronde Kenyatt Mitchell for felony murder predicated on unlawful distribution of a controlled substance (marijuana).
- Mitchell and Cedric Tolbert attempted to sell marijuana to Jaquin Jones while in a vehicle.
- Jones attempted to rob Mitchell and Tolbert at gunpoint.
- During the attempted robbery, Tolbert was killed.
- Mitchell moved to dismiss the felony-murder charge, arguing unlawful distribution is not a felony “clearly dangerous to human life” and thus could not support felony murder.
- The circuit court denied the motion.
- Mitchell sought extraordinary relief in the appellate court (styled as prohibition/mandamus) to compel dismissal of the felony-murder charge.

## Issues

1. Whether a pretrial challenge asserting that an indictment charges no offense (and is therefore void) must be brought by habeas corpus rather than mandamus/prohibition.
2. Whether unlawful distribution of a controlled substance can qualify as a felony “clearly dangerous to human life” sufficient to support a felony-murder indictment.

## Decision

- The court treated Mitchell’s extraordinary petition as a petition for writ of habeas corpus because the claim, if correct, would render the indictment void.
- The court held that unlawful distribution of a controlled substance can constitute a felony “clearly dangerous to human life,” depending on how the offense is committed.
- The court concluded the indictment charged an offense and was not void.
- The court denied relief, allowing the felony-murder charge to proceed.

## Legal Principles

- A claim that an indictment charges no offense is jurisdictional; if correct, it renders the indictment void.
- Habeas corpus is the proper vehicle to challenge custody or prosecution predicated on an asserted lack of jurisdiction due to a void indictment; appellate courts may recharacterize mislabeled pleadings based on substance.
- For felony murder, the predicate felony need not be limited to inherently violent crimes; a felony may qualify as “clearly dangerous to human life” when, by its nature and the circumstances of its commission, it foreseeably creates a substantial risk of death.
- Drug-distribution activity may be treated as “clearly dangerous to human life” where it is associated with foreseeable lethal violence, such as armed confrontations during a transaction.

## Conclusion

The court denied pretrial relief after reclassifying the petition as habeas corpus, holding that unlawful distribution of a controlled substance can serve as a felony-murder predicate as a felony “clearly dangerous to human life,” and therefore the indictment was not void.


Ex parte Mitchell, 936 So. 2d 1094 (Ala. Crim. App. 2006)