McWilliams v. State

• Citation: 897 So.2d 437
• Parties: James Edmond McWILLIAMS v. STATE of Alabama.
• Decision Date: 30 April 2004
• Court: Alabama Court of Criminal Appeals

897 So.2d 437

James Edmond McWILLIAMS v. STATE of Alabama.

CR-01-0235.

Court of Criminal Appeals of Alabama.

April 30, 2004.

Rehearing Denied June 11, 2004.

Certiorari Denied September 24, 2004.

Richard S. Jaffe and Stephen A. Strickland, Birmingham, for appellant.

Troy King and William H. Pryor, Jr., attys. gen., and A. Vernon Barnett IV, asst. atty. gen., for appellee.

Alabama Supreme Court 1031428.

BASCHAB, Judge.

On August 27, 1986, the appellant, James Edmond McWillliams, was convicted of two counts of capital murder because he committed the murder during the course of a robbery, see § 13A-5-40(a)(2), Ala.Code 1975, and one count of capital murder because he committed the murder during the course of a rape, see § 13A-5-40(a)(3), Ala.Code 1975. On August 28, 1986, by a vote of 10-2, the jury recommended that he be sentenced to death. On October 9, 1986, the trial court accepted the jury's recommendation and sentenced him to death. We affirmed his convictions on direct appeal, see McWilliams v. State, 640 So.2d 982 (Ala.Crim.App.1991)

; the Alabama Supreme Court affirmed his convictions, see Ex parte McWilliams, 640 So.2d 1015 (Ala.1993), and his sentence, see Ex parte McWilliams, 666 So.2d 90 (Ala.1995); and the United States Supreme Court denied his petition for certiorari review, see McWilliams v. Alabama, 516 U.S. 1053, 116 S.Ct. 723, 133 L.Ed.2d 675 (1996). The relevant facts of the case are set forth in this court's opinion on direct appeal. This court issued a certificate of judgment on August 8, 1995.

On April 2, 1997, the appellant filed a Rule 32 petition, challenging his convictions. After several attorneys were appointed and allowed to withdraw, the appellant filed an amended Rule 32 petition on September 29, 1999. He filed a second amended petition on June 8, 2000, and a revised second amended petition on June 12, 2000. The circuit court conducted an evidentiary hearing on June 12-15, 2000. On August 8, 2000, the appellant moved to amend his Rule 32 petition, to examine additional witnesses, and to have a one day evidentiary hearing so he could call those witnesses. After the State objected, the circuit court denied the appellant's motion. In March 2001, the appellant again moved to amend the Rule 32 petition and to conduct additional discovery. The circuit court denied that motion. In September 2001, the circuit court issued a 43-page order denying the appellant's petition. This appeal followed.

The appellant raises several arguments, including claims that his attorneys rendered ineffective assistance during various proceedings. In reviewing the circuit court's rulings on the appellant's arguments, we apply 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.Crim.App.1993), cert. denied, , 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.Crim.App.1993)."

Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.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, , 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.Crim.App.1992).

"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. at 697, 104 S.Ct. at 2069. In fact, the Court explained that `[i]f 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. We defer to this guidance and address the `prejudice' prong, for `[w]ith respect to the prejudice component, the lack of merit of [Thomas's] claim is even more stark.' Id. at 699, 104 S.Ct. at 2070."

Thomas v. State, 511 So.2d 248, 255 (Ala.Crim.App.1987) (footnote omitted).

"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir.1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App.1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)."

Davis v. State, 720 So.2d 1006, 1014 (Ala.Crim.App.1998).

I.

First, the appellant argues that the circuit court improperly adopted verbatim the State's proposed orders.

"`While the practice of adopting the State's proposed findings of fact and conclusions of law is subject to criticism, the general rule is that even when the court adopts proposed findings and conclusions verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App.1991); Weeks v. State, 568 So.2d 864 (Ala.Cr.App.1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551 So.2d 435 (Ala.Cr.App.1989), cert. denied, 495 U.S. 911, 110 S.Ct. 1938, 109 L.Ed.2d 301 (1990).'

"Wright v. State, 593 So.2d 111, 117-18 (Ala.Cr.App.1991), cert. denied, , 113 S.Ct. 132, 121 L.Ed.2d 86 (1992)."

Holladay v. State, 629 So.2d 673, 687-88 (Ala.Crim.App.1992). The record does not indicate that the circuit court's findings are clearly erroneous. In fact, it supports those findings.¹ Therefore, the appellant's argument is without merit.

II.

Second, the appellant argues that the circuit court improperly denied his motions to amend his petition and the discovery agreements. A review of the procedural history of the proceedings in the circuit court is essential to evaluate this claim. The appellant filed his Rule 32 petition on April 2, 1997, and the circuit court appointed counsel to represent him. After two attorneys had been appointed and granted leave to withdraw because of their lack of experience in death penalty cases, the circuit court appointed John W. Stahl. In August 1998, Stahl filed a motion to withdraw, citing the appellant's remarks to him that "he was going to be filing something himself asking that counsel be removed from the case and that he did not wish [Stahl] to represent him." (C.R. 113.) In September 1998, the circuit court appointed Andrew A. Smith, and the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison appeared pro bono. New York attorneys Lauren Panora, Holly D....