A.G. v. State, CR-05-2241.

• Court: Alabama Court of Criminal Appeals
• Citation: 989 So.2d 1167
• Docket Number: CR-05-2241.
• Parties: A.G. v. STATE of Alabama.
• Decision Date: 02 November 2007

989 So.2d 1167

A.G. v. STATE of Alabama.

CR-05-2241.

Court of Criminal Appeals of Alabama.

November 2, 2007.

Rehearing Denied December 14, 2007.

Certiorari Denied February 15, 2008 Alabama Supreme Court 1070446.

A.G., pro se.

Troy King, atty. gen., and Nancy M. Kirby, asst. atty. gen., for appellee.

SHAW, Judge.

A.G. appeals the circuit court's summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his May 2004 conviction for sodomy in the first degree and his resulting sentence of 40 years' imprisonment. This Court affirmed A.G.'s conviction and sentence on appeal in an unpublished memorandum issued on March 19, 2004. See A.G. v. State (No. CR-03-0024), 910 So.2d 836 (Ala.Crim.App.2004) (table). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on June 14, 2004.

On June 9, 2005, A.G. filed his Rule 32 petition and an attachment listing his claims. On July 19, 2005, A.G. filed a brief in support of his petition. After receiving a response from the State, the circuit court summarily denied the petition on November 17, 2005. By order dated March 23, 2006, this Court dismissed A.G.'s appeal on the ground that the circuit court had not granted A.G.'s request to proceed in forma pauperis before ruling on A.G.'s petition.¹ In the order, this Court noted that A.G.'s petition "stands as filed and awaits a ruling by the circuit court." On April 3, 2006, A.G. filed an amendment to his petition. In the petition and the amendment thereto, A.G. raised numerous claims, including several allegations of ineffective assistance of counsel. After receiving an amended response from the State, and a reply to that response from A.G., the circuit court summarily denied A.G.'s petition, as amended, on July 24, 2006, on the ground that all of his claims were meritless.

On appeal, A.G. contends that the circuit court erred in summarily denying his petition without affording him an evidentiary hearing. For the reasons stated below, we conclude that summary denial of A.G.'s petition under Rule 32.7(d), Ala.R.Crim.P., was proper.

I.

A.G. contended in his petition that his trial counsel was ineffective for various reasons. In the attachment to his petition, A.G. listed the following allegations of ineffective assistance of trial counsel, quoted here in their entirety:

(1) "Counsel was ineffective for not requesting that the trial court charge the jury on the lesser included offense of sodomy 1st";

(2) "Counsel was ineffective for not objecting to an indictment that was void or defective";

(3) "Counsel was ineffective for not cross examin[ing] [the victim], the State's star witness, thereby denying petitioner the right to cross examine and confront witnesses against him";

(4) "Counsel was ineffective for not filing a motion for a new trial for the State not making out a prima facie case of sodomy 1st";

(5) "Counsel was ineffective for not requesting that the judge instruct the jury on expert testimony";

(6) "Counsel was ineffective for not requesting a psychological evaluation of petitioner";

(7) "Counsel was ineffective for not visiting petitioner or attempting to discuss a defense or charges or mitigating facts and circumstances and never developed a trial strategy";

(8) "Counsel was ineffective for failing to prepare a proper defense";

(9) "[Counsel] [f]ailed to properly place trial court on notice that he was challenging the trustworthiness of witnesses statement";

(10) "Counsel was ineffective for not objecting and preserving trial errors for appellate review and failed to properly raise issues on appeal"; and

(11) "Counsel was ineffective for not forcing the State to allow defense counsel to challenge the relevancy of Dr. Slattery's statements."

(C. 6-7.) In the brief in support of his petition, A.G. expanded on claims (3) and (5), as set out above, and in his amendment, A.G. again expanded on claim (3), as set out above.

In the amendment to his Rule 32 petition, A.G. raised claims that he had not previously raised, including the following additional allegations of ineffective assistance of trial counsel:

(12) That his counsel was ineffective for requesting funds for an "expert witness" to interview the victim, but then not arranging the interview until six days before the trial began (C. 57);

(13) That his counsel was ineffective for not obtaining and presenting "records" indicating that the victim's maternal grandmother, [B.B.], to whom the victim first disclosed the sodomy, had previously "made the same kind of false allegations against petitioner with petitioner's older daughter" (C. 58);

(14) That his counsel was ineffective for not calling Karl L. Youngblood [a polygraph examiner], [and] T.K. and C.K. [B.B.'s stepsons] to testify on his behalf; and

(15) That his counsel was ineffective for not adequately cross-examining [B.B.] and Lt. Richard Carter.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his counsel's performance was deficient and (2) that that deficient performance actually prejudiced the defense. "To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances." Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.1987). "`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.'" Lawhorn v. State, 756 So.2d 971, 979 (Ala.Crim.App. 1999), quoting Hallford v. State, 629 So.2d 6, 9 (Ala.Crim.App. 1992). "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As the United States Supreme Court explained:

"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. 2052 (citations omitted). To prove prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052.

Rule 32.3, Ala.R.Crim.P., states that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Rule 32.6(b), Ala.R.Crim.P., states that "[t]he petition must 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 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). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must `identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' ...