Appeal from Jefferson Circuit Court
PER CURIAM.
Walter Leroy Moody, Jr., appeals the circuit court's summary dismissal of his petition for postconviction relief, filed pursuant to Rule 32, Ala. R. Crim. P.
In 1996, after a jury trial in which he represented himself, Moody was convicted of two counts of capital murder for the 1989 pipe-bomb murder of Judge Robert S. Vance of the United States Court of Appeals for the Eleventh Circuit. The murder was made capital (1) because it was committed by means of explosives or explosion, see § 13A-5-40(a)(9), Ala. Code 1975, and (2) because Judge Vance was a public official and the murder stemmed from, was caused by, or was related to Judge Vance's official position, act, or capacity, see § 13A-5-40(a)(11), Ala. Code 1975. Moody was also convicted of assault in the first degree, see § 13A-6-20(a)(1), Ala. Code 1975, for injuries sustained by Judge Vance's wife, Helen Vance, in the bomb blast. By a vote of 11-1, the jury recommended that Moody be sentenced to death for his capital-murder convictions, and the trial court followed the jury's recommendation and sentenced Moody to death. The trial court also sentenced Moody to life imprisonment for the assault conviction.
This Court affirmed Moody's convictions and sentences on appeal.1 Moody v. State, 888 So. 2d 532 (Ala. Crim. App.2003). The facts of the crime are fully set out in that opinion. The Alabama Supreme Court denied certiorari review, Ex parte Moody, 888 So. 2d 605 (Ala. 2004), and this Court issued a certificate of judgment on March 26, 2004. The United States Supreme Court subsequently denied certiorari review on November 1, 2004. Moody v. Alabama, 543 U.S. 964 (2004).
Moody timely filed his Rule 32 petition on March 23, 2005,2 raising numerous claims, including several claims of ineffective assistance of counsel. The circuit court appointed counsel to represent Moody, who had apparently filed his petition pro se, and counsel filed an amended petition on March 2, 2006, which incorporated by reference all the claims raised in Moody's original petition and raised one additional claim. The State filed an answer to Moody's petition and amended petition on July 3, 2006, and a motion for summary dismissal on July 12, 2006. On May 8, 2007, counsel moved towithdraw from representing Moody. The circuit court granted the motion in August 2008, and on September 4, 2008, the court appointed new counsel to represent Moody. On July 20, 2009, Moody's new counsel filed a response to the State's motion for summary dismissal, and a second amended petition,3 which incorporated by reference all the claims raised in Moody's original petition and amended petition, expanded on some of those claims, and raised additional claims. On August 17, 2009, the State filed an answer and motion for summary dismissal of Moody's second amended petition. The circuit court issued an extensive order summarily dismissing Moody's petition and amended petitions on December 28, 2009. This appeal followed.
"'[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.' Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). 'However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, "[t]he standardof review on appeal ... is whether the trial judge abused his discretion when he denied the petition."' Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)). 'On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence.' Ferguson v. State, 13 So. 3d 418, 424 (Ala. Crim. App. 2008).
"Moreover, 'there exists a long-standing and well-reasoned principle that we may affirm the denial of a Rule 32 petition if the denial is correct for any reason.' McNabb v. State, 991 So. 2d 313, 333 (Ala. Crim. App. 2007). That general rule is limited only by due-process constraints that 'require some notice at the trial level, which was omitted, of the basis that would otherwise support an affirmance, such as when a totally omitted affirmative defense might, if available for consideration, suffice to affirm a judgment.' Liberty Nat'l Life Ins. Co., v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003). In the context of Rule 32 proceedings, 'the language of Rule 32.3 [placing the burden on the State to plead any ground of preclusion in Rule 32.2] ... has created the narrow due-process constraint discussed in Liberty National, 'McNabb, 991 So. 2d at 334, by making the preclusions in Rule 32.2 affirmative defenses and prohibiting this Court from sua sponte applying those preclusions for the first time on appeal. See Ex parte Clemons, 55 So. 3d 348 (Ala. 2007). Thus, although the preclusions in Rule 32.2 '"apply with equal force to all cases, including those in which the death penalty has been imposed,"' Nicks v. State, 783 So. 2d 895, 901 (Ala. Crim. App. 1999) (quoting State v. Tarver, 629 So. 2d 14, 19 (Ala. Crim. App. 1993)), only if those affirmative defenses are asserted by the State or found by the circuit court may this Court apply them on appeal."
Bryant v. State, [Ms. CR-08-0405, February 4, 2011] ___ So. 3d ___, ___ (Ala. Crim. App. 2011).
Additionally, Rule 32.7(d), Ala. R. Crim. P., authorizes a circuit court to summarily dismiss a Rule 32 petition
"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings . . ."
Moody first contends on appeal that the circuit court erred in summarily dismissing his claims of ineffective assistance of counsel. He argues that his ineffective-assistance claims regarding pretrial counsel, L. Dan Turberville and Richard S. Jaffe, were not subject to the preclusions in Rule 32.2(a) and were pleaded with sufficient specificity to entitle him to an evidentiary hearing. He also argues that his ineffective-assistance claims regarding appellate counsel, Bruce A. Gardner, were sufficiently pleaded to entitle him to an evidentiary hearing.
"[W]hen reviewing a petitioner's claims of ineffective assistance of counsel, we apply the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The petitioner must establish: (1) thatcounsel's performance was deficient; and (2) that the petitioner was prejudiced by counsel's deficient performance.
"'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'
"Strickland, 466 U.S. at 687.
"'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.
"'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. Cf. Engle v. Isaac, 456 U.S. 107, 133-34 (1982). 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." See Michel v. Louisiana, [350 U.S. 91], at 101 (1955)]. There are countless ways to provide effective assistance in any given case.
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