Patrick Burkett, Richard L. Groffsky, and Justin C. Ravitz, Southfield, MI; and J. Drew Colfax, Montgomery, for appellant.
Bill Pryor, atty. gen., and J. Clayton Crenshaw, asst. atty. gen., for appellee.
Alabama Supreme Court 1980085.
PATTERSON, Retired Appellate Judge.
In 1988, the appellant, Jerry Paul Henderson, was found guilty of capital murder and sentenced to death. We affirmed. Henderson v. State, 583 So.2d 276 (Ala.Crim.App.1990). The Alabama Supreme Court affirmed our judgment, Ex parte Henderson, 583 So.2d 305 (Ala.1991), and the United States Supreme Court denied the appellant's petition for certiorari review. Henderson v. Alabama, 503 U.S. 908, 112 S.Ct. 1268, 117 L.Ed.2d 496 (1992).
On October 13, 1993, the appellant, through retained counsel, filed a post-conviction petition pursuant to Ala.R.Crim.P. 32, alleging ineffective assistance of trial and appellate counsel, as well as numerous other issues; these other issues were precluded from review because they either were raised at trial and/or on appeal and were decided adversely to the appellant, or could have been raised and were not. It appears from the record that the appellant's counsel filed the Rule 32 petition without consulting with the appellant. Before and after the scheduled hearing on the merits of the petition, the appellant's counsel were permitted to withdraw from the case, and the circuit court continued the hearing to allow the appellant time to find new counsel. Because the appellant was unable to find new counsel, the circuit court appointed counsel to represent him. At the hearing on the Rule 32 petition, held on April 22, 1997, the appellant, through appointed counsel, moved for dismissal of his petition. The record shows the following:
"THE COURT: Did you want to say something into the record at this time?
"MR. GIDDENS [appointed counsel for petitioner]: Yes, sir, Judge. I conferred with my client, Jerry Henderson, yesterday. I went over his petition with him, and yesterday was the first time he had actually seen the petition. He did not file it he tells me. He did not make those allegations. And looking at the petition myself, it was comprised, I believe, mostly of allegations of ineffective assistance of counsel—either things his lawyer did during the trial or did not do during the trial or did not prepare for trial. Mr. Henderson tells me that he has no complaints personally—or in this petition—he wasn't sure what most of the allegations even meant. He has no complaints with either Mr. Pitts or Mr. Adams. He feels they represented him as well as they possibly could have at trial, and ... he wants his petition dismissed.
"THE COURT: You have had plenty of time to talk to Mr. Henderson about this?
"MR. GIDDENS: I've conferred with him. I've done several of these petitions. I've tried several capital murder cases. I've talked with him, and it is my opinion he is of sound mind, and he knows as much about what he is doing as anybody I have ever represented in my 11 years of doing this; and I believe that he fully understands what this petition means and what it means by being dismissed.
"THE COURT: And he understands that there were allegations in the petition relative to incompetent counsel at the time of trial, and you went over that with him?
"MR. GIDDENS: Yes, sir. He says that's not true. He's well satisfied that his attorneys did everything they could for him."
The circuit court then engaged the appellant in an extensive colloquy regarding his motion and its possible consequences, and granted his motion dismissing the petition.1 The record shows the following:
"THE COURT: Let me go over just a few things, Mr. Henderson, so we can further put some things in the record. You can just stay right where you are. You can hear me can't you, Mr. Henderson?
"DEFENDANT: Yes, sir. I can hear you fine.
"THE COURT: You understand, Mr. Henderson, that you were tried in this courtroom. In fact, it will be 10 years ago or 9 years ago—
"DEFENDANT: In May.
"THE COURT: In May 1988. You remember that the jury convicted you of capital murder at that time. You remember that don't you?
"DEFENDANT: Yes, sir. I do.
"THE COURT: You remember the jury came back and made a recommendation to the court that you should be sentenced to the electric chair for your punishment. You remember that don't you?
"DEFENDANT: Yes, sir.
"THE COURT: And you remember that sometime later—probably 30 or 40 days later that the court had another sentence hearing, and that at the conclusion of that sentence hearing the court went along with the recommendation of the jury and sentenced you to the electric chair. You remember that don't you?
"DEFENDANT: Yes, sir.
"THE COURT: You also understand that your direct appeals of the case have all been affirmed. In other words, your appeal to the Alabama Supreme Court has been affirmed, and any appeal that may have gone to the federal system has been affirmed in the case, which means you lost your appeal. You understand that don't you?
"DEFENDANT: Yes, sir.
"THE COURT: Okay. Do you understand that by filing this Rule 32 which is a post—collateral action really—that you are saying that something happened in the trial back in 1988 that would justify you getting a new trial. Do you understand that's what this Rule 32 is all about?
"DEFENDANT: Yes, sir. I understand that.
"THE COURT: Do you understand that if you dismiss your Rule 32 petition, which is what we are here for today to try, then the court cannot determine if anything did take place back then that would be in error. You understand that?
"DEFENDANT: Yes, sir. I understand.
"THE COURT: Do you understand by dismissing this petition that you are a step closer to having your sentence to the electric chair carried out? Do you understand that?
"DEFENDANT: Yes, sir. I understand that.
"THE COURT: Do you understand that by dismissing your petition for Rule 32 that you could hurt any appeal that you may have further on in the state courts and also in the federal courts if you decide to file a petition after today. Do you understand that?
"DEFENDANT: Yes, sir. I understand that.
"THE COURT: Do you understand that by dismissing your petition that you could be speeding up your date of execution? Do you understand that?
"DEFENDANT: Yes, sir. I understand that.
"THE COURT: In consideration of all of these things that I've talked about and what your lawyer's talked about and told the court, and after conferring with your lawyer, Mr. Steve Giddens, it is your decision to dismiss your Rule 32 petition and waive any further hearing today. Is that right?
"DEFENDANT: Yes, sir. That's correct.
"THE COURT: And you are making this decision of your own free will, knowingly and voluntarily. Is that correct?
"DEFENDANT: Yes, sir. It is.
"THE COURT: And no one has threatened you, coerced you, made promises or tricked you into making this decision that you have told us about today?
"DEFENDANT: No, sir they haven't..
"THE COURT: And it's your decision after consideration of these things to dismiss your petition for Rule 32?
"DEFENDANT: Correct. Yes, sir.
"THE COURT: Anything from the State?
"MR. CRENSHAW [assistant district attorney]: Only thing I would have, Judge—just to note for the record—that the petition was prepared by a Jack Gohn with a Baltimore, Maryland, firm. Could I just ask Mr. Giddens to ask his client whether Mr. Gohn has ever met Mr. Henderson?
"MR. GIDDENS: Jerry, have you even personally met Mr. Gohn?
"DEFENDANT: Yes, sir. He come up to the prison and talked to me when they first put him on my case. He basically asked me what happened in the sense of what brought it all about and everything and what happened in the courtroom and all of that; and I told him all the details. Then he left, and I never seen him after that. He sent me some papers and stuff, but I didn't know what they was for—where he was making appeal—but he asked me did I feel like—he asked me then did I feel like I had adequate counsel. I said, `Yes, I do. I did.' He said, `Well, I don't.' I said, `Well, I believe Mr. Pitts and Mr. Adams done the best they could.' I said that Mr. Adams was actually jumping up and down like a jumping bean, you know.
Kind of upset Rumsey [district attorney] a little bit. I said that I thought they done good. But anyhow he said he was going to file that. He was my lawyer, so I left that decision up to him.
"THE COURT: But today after talking to Mr. Giddens it is your desire to withdraw it and dismiss it?
"DEFENDANT: Yes, sir.
"THE COURT: One other thing. The record would show that other lawyers that were in this case either never got qualified to serve—to be a lawyer in the State of Alabama as required by Alabama rules—or they asked the court to withdraw, and I think that's how we ended up with Mr. Steve Giddens. Of course, for the record I would show that Mr. Steve Giddens has been practicing law in this circuit for more than 10 years. In fact, about 12?
"MR. GIDDENS: Be 11, Friday.
"THE COURT: I know personally that he has tried several capital murder cases in my courtroom, and he always does an outstanding job defending his clients, and so I wanted to put somebody on the case that would be able to represent Mr. Henderson appropriately; and I know that Steve would have done that if the case had gone forward, and I'm sure he would be prepared to go forward today, in fact. So, the court did pick Mr. Giddens, a well-experienced criminal defense lawyer. I say that you probably do 80% of your work in criminal defense, don't you?
"MR. GIDDENS: Yes, sir, at least.
"THE COURT: I know he's tried capital cases in Talladega and I suspect Calhoun County also. I know he tried one in Coosa County.
"MR. GIDDENS: Yes, sir. I did.
"THE COURT: And he's had cases that have been not guilty's in
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