Hunt v. State, No. CR-02-0813 (AL 11/23/2005), CR-02-0813.

• Court: Alabama Supreme Court
• Writing for the Court: Wise
• Decision Date: 23 November 2005
• Docket Number: No. CR-02-0813.,CR-02-0813.
• Citation: Hunt v. State, No. CR-02-0813 (AL 11/23/2005), No. CR-02-0813. (Ala. Nov 23, 2005)
• Parties: Gregory Hunt v. State of Alabama.

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Gregory Hunt v. State of Alabama.

No. CR-02-0813.

Court of Criminal Appeals of Alabama.

Decided November 23, 2005.

Appeal from Walker Circuit Court (CC-89-76.60)

On Application for Rehearing.

WISE, Judge.

The appellant, Gregory Hunt, appealed the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.App.P., attacking his capital-murder conviction and sentence of death. We affirmed the circuit court's denial of Hunt's Rule 32 petition. See Hunt v. State, [Ms. CR-02-0813, August 26, 2005] ___ So. 2d ___ (Ala.Crim.App. 2005). In Part II of our opinion we addressed Hunt's claim that the circuit court applied the wrong standard when evaluating his claims of ineffective assistance of counsel. We specifically noted that the circuit court applied the law applicable at the time it concluded that a finding of no plain error by this Court on direct appeal would preclude a finding of prejudice under Strickland v. Washington, 466 U.S. 668 (l984).

While this case was pending on rehearing, the Alabama Supreme Court released Ex parte Taylor, [Ms. 1040186, September 30, 2005] ___ So. 2d ___ (Ala. 2005). The Supreme Court resolved the issue of whether a finding of plain error precludes a finding of prejudice and stated:

"Although it may be the rare case in which the application of the plain-error test and the prejudice prong of the Strickland test will result in different outcomes, a determination on direct appeal that there has been no plain error does not automatically foreclose a determination of the existence of the prejudice required under Strickland to sustain a claim of ineffective assistance of counsel. In determining whether to grant a Rule 32 petitioner relief on an ineffective-assistance claim, a court must examine both the plain-error and prejudice standards of review."

___ So. 2d at ___.

In light of the Supreme Court's decision in Taylor, we have reexamined Part II of our opinion. Hunt's argument in his brief on this issue consists of the following:

"The trial court ruled that many of the grounds of the claims of ineffective assistance of trial and appellate counsel are effectively precluded because there had been a finding on direct appeal of no plain error with respect to the underlying substantive claim. (C. 808-09, Parts I.E; 810-11, I.G; 819, I.O; 821-26, I.P(1)-I.P(4); 830-40, I.P(8)-I.P(14); 858-60, I.DD). Specifically, the trial court reasoned that because this Court and the Alabama Supreme Court on direct appeal found no plain error and, therefore, must have found no manifest injustice resulting from the substantive errors that underlie the present claim of ineffective assistance of counsel, this Court cannot find that Mr. Hunt's lawyers' error resulted in prejudice under Strickland, 466 U.S. 668 (1984)."

(Hunt's brief at pages 23-24.) Hunt did not identify any specific issue he claims was incorrectly resolved by the circuit court. Rule 28(a)(7), Ala.R.App.P. states in part that a brief must contain: "A full statement of the facts relevant to the issues presented for review, with appropriate references to the record ...." Hunt's brief fails to comply with the requirements of Rule 28(a)(7), Ala.R.App.P.

Moreover, we have reviewed the issues presented in Hunt's brief. The issues that have been identified by merely citing page numbers in the Rule 32 record are: (1) counsel was ineffective for failing to argue that Hunt's arrest was not based on probable cause; (2) counsel was ineffective for failing to argue that Hunt was denied access to the law library and could not aid in his defense; (3) counsel was ineffective for failing to object to prior-bad-act evidence; (4) counsel was ineffective for failing to object to improper argument made by the prosecutor in his opening and closing statements; and (5) counsel was ineffective for failing to ensure that all the proceedings were transcribed.

In response to his first issue, this Court on direct appeal specifically found that Hunt's arrest was based on probable cause. We detailed the evidence in support of this claim in our opinion. This Court stated: "The record of these proceedings convinces this Court that there was clearly probable cause for the appellant's arrest." Hunt v. State, 659 So. 2d 933, 948 (Ala.Crim.App. 1994). Therefore, Hunt cannot show that counsel's performance was deficient.

Hunt argues that he was denied access to the law library and that counsel was ineffective in failing to argue that this prevented him from aiding in his defense. On direct appeal we specifically addressed this issue and noted that the issue had been raised in the circuit court. We stated:

"'While prison officials must provide prisoners with direct legal assistance or access to a law library, they are not required to provide both, so long as the constitutional requirement of "meaningful access"...