Boyd v. State

Decision Date26 March 1999
Citation746 So.2d 364
PartiesWilliam Glenn BOYD v. STATE.
CourtAlabama Court of Criminal Appeals

Ruth E. Friedman, Montgomery, for appellant.

Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.

Alabama Supreme Court 1981080.

On Application for Rehearing

COBB, Judge.

The unpublished memorandum of December 18, 1998, is withdrawn and the following opinion is substituted therefor.

On March 20, 1987, the appellant, William Glenn Boyd, was convicted for intentionally murdering Evelyn Blackmon and Fred Blackmon during the course of a robbery and kidnapping. By a vote of 7-5, the jury recommended that Boyd be sentenced to life in prison without the possibility of parole. On April 9, 1987, the trial court sentenced Boyd to death by electrocution. He appealed. This court affirmed Boyd's conviction and sentence. Boyd v. State, 542 So.2d 1247 (Ala.Cr.App.1988).1 The Alabama Supreme Court affirmed the conviction and death sentence on February 24, 1989, Ex parte Boyd, 542 So.2d 1276 (Ala.1989), and on April 7, 1989, that Court denied rehearing. The United States Supreme Court denied Boyd's petition for certiorari review on October 2, 1989. Boyd v. Alabama, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).

On July 5, 1990, Boyd, through counsel, filed a Rule 20, Ala.R.Crim.P.Temp., (now Rule 32, Ala.R.Crim.P.),2 petition for postconviction relief, which he amended on November 30, 1990, and July 8, 1994. Among the claims made in the petition are substantive claims alleging errors in his trial and claims that his trial counsel and appellate counsel were ineffective. The State filed a response, arguing that all the issues, except those claiming ineffective assistance of counsel, were procedurally precluded. (Vol.1, C.R.52.)3 On September 12, 1990, the circuit court summarily dismissed Boyd's petition by notation on the case action summary sheet. (Vol.1, C.R.2.) On October 15, 1990, Boyd petitioned for reconsideration of the dismissal of the petition. On October 16, 1990, the trial court reinstated the petition. Prior to Boyd's Rule 32 hearing, the circuit court summarily dismissed all of Boyd's grounds for relief, except those claims alleging ineffective assistance of trial counsel and appellate counsel, finding the dismissed claims to be precluded by Rule 32.2(a), and subject to summary dismissal pursuant to Rule 32.7(d) Ala.R.Crim.P. (Vol. 3, C.R. 498; Vol. 16, R. 100.) Beginning on September 8, 1994, and continuing on October 6, 1994, October 7, 1994, and October 12, 1994, the circuit court conducted an evidentiary hearing at which the parties submitted oral testimony, exhibits, and depositions. At the end of the hearing, the circuit court instructed the parties to submit post-hearing briefs and proposed orders at a designated time after their receipt of the hearing transcript. However, the transcript was not timely prepared so the parties submitted their post-hearing briefs in September 1996, without the aid of a record. On July 25, 1997, the trial court denied the petition by written order, finding as follows:

"This matter comes before the Court on the Petitioner's Petition as amended pursuant to Rule 20 (Temporary) Rules of Criminal Procedure (now Rule 32, Alabama Rules of Criminal Procedure). This Court has previously dismissed all claims asserted by the Petitioner except the Petitioner's claims of ineffective assistance of counsel. The Court has heard and considered extensive testimony concerning the issues of ineffective assistance of counsel in this case, has given the parties an opportunity to present written arguments and caselaw and has reviewed the file and transcript of the original trial in this case.
"The Petitioner raises thirty (30) separate claims of ineffective assistance of counsel, both at the trial level and appellate level. Upon consideration of all of the above as it concerns and applies to each separate claim, this Court finds that the Petitioner has failed to show that his counsel's representation, both at the trial level and appellate level, fell below the objective standard of reasonableness or that there was a reasonable probability that but for counsel's unprofessional errors, if any, the outcome of his case would have been different, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"It is therefore, ORDERED, ADJUDGED, AND DECREED that the Petitioner's request for relief pursuant to Rule 20 (now Rule 32) of the Alabama Rules of Criminal Procedure is hereby DENIED."

(Vol.5, C.R.944-45.)

Boyd appealed.

Boyd raises numerous issues on appeal, including substantive claims alleging errors in his trial and claims that his trial counsel and appellate counsel were ineffective. He also contends that the trial court erred in summarily dismissing claims that were properly presented in his Rule 32 petition.

In reviewing the trial court's denial of the appellant's petition, we are guided by the following principles.

"`"`[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence.' Thompson v. State, 615 So.2d 129 (Ala. Cr.App.1992)." Cade v. State, 629 So.2d 38, 41 (Ala.Cr.App.1993), cert. denied, 511 U.S. 1046, 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).'
"`In addition, "[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed." State v. Tarver, 629 So.2d 14, 19 (Ala.Cr.App. 1993).'"

Davis v. State, 720 So.2d 1006, 1012-13 (Ala.Cr.App.1998) (quoting Brownlee v. State, 666 So.2d 91, 93 (Ala.Cr.App.1995)).

I.

Boyd contends that the trial court erred in not finding that he was denied the effective assistance of his counsel in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the Constitution and laws of the State of Alabama. "In cases in which, as here, trial counsel also served as appellate counsel, claims of ineffective assistance of counsel are cognizable in a Rule 32, Ala.R.Crim. P., petition." Grayson v. State, 675 So.2d 516 (Ala.Cr. App.1995).

"`To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"`"The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances.... `[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct. at 2066."
"`Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App.1990),

aff'd, 590 So.2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

"`When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App.1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.'
"`"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way."
"`Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987).
"`Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. "Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable...." Lawley, 512 So.2d at 1372. This court must avoid using "hindsight" to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App.1991).'
"Hallford v. State, 629 So.2d 6, 8-9 (Ala. Cr.App.1992), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 491 (1994).
"`In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. [466 U.S.] at 697, . In fact, the Court explained that "if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. ...'
"Thomas v. State, 511 So.2d 248, 255 (Ala.Cr.App.1987)

.

"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim
...

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