Windsor v. State

• Decision Date: 25 September 2009
• Docket Number: CR–05–1203.
• Citation: 89 So.3d 805
• Parties: Harvey L. WINDSOR v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

89 So.3d 805

Harvey L. WINDSOR

v.STATE of Alabama

CR–05–1203.

Court of Criminal Appeals of Alabama.

Aug. 7, 2009.

Rehearing Denied Sept. 25, 2009.

Opinion on Remand from the

Alabama Supreme Court

Aug. 26, 2011.

Rehearing Denied Dec. 2, 2011.

Certiorari Denied Feb. 17, 2012

Alabama Supreme Court 1110338.

Edward D. Tumlin, Birmingham, for appellant.

Troy King, atty. gen., and Michael A. Nunnelley (withdrew 07/01/2008), J. Clayton Crenshaw and Joshua Bearden, asst. attys. gen., for appellee.

WISE, Presiding Judge.

On June 8, 1992, the appellant, Harvey L. Windsor, was convicted of capital murder for the killing of Rayford W. Howard. The murder was made capital because he committed it during the course of a robbery. See§ 13A–5–40(a)(2), Ala.Code 1975. The jury unanimously recommended that Windsor be sentenced to death. On June 12, 1992, the trial court followed the jury's recommendation and sentenced him to death.

This court originally reversed Windsor's conviction and sentence. See Windsor v. State, 683 So.2d 1013 (Ala.Crim.App.1993). However, the Alabama Supreme Court reversed this court's judgment. See Ex parte Windsor, 683 So.2d 1021 (Ala.1994). On remand from the Alabama Supreme Court, we affirmed Windsor's conviction and sentence, see Windsor v. State, 683 So.2d 1027 (Ala.Crim.App.1994); the Alabama Supreme Court affirmed his conviction and sentence, see Ex parte Windsor, 683 So.2d 1042 (Ala.1996); and the United States Supreme Court denied his petition for certiorari review, see Windsor v. Alabama, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). This court issued a certificate of judgment on November 5, 1996.

On April 1, 1998, Windsor filed a Rule 32 petition, challenging his conviction and sentence. The State filed an answer and motions for a partial dismissal. On November 18, 1998, the circuit court entered an order partially dismissing some of the procedurally barred claims and granting Windsor thirty days to amend his petition to comply with the specificity requirement set forth in Rule 32.6(b), Ala. R.Crim. P. On December 18, 1998, Windsor filed an amended petition. After the State responded again, the circuit court again entered orders dismissing some of the claims on August 17, 1999. The circuit court later scheduled an evidentiary hearing on the remaining claims, but the hearing was continued and, ultimately, the case was assigned to a new judge. On February 17, 2006, the circuit court summarily dismissed the remaining claims from the petition. This appeal followed.

Windsor raises several arguments, including claims that his attorneys rendered ineffective assistance during the 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).

“The purpose of ineffectiveness review is not to grade counsel's performance. See Strickland [v. Washington], 104 S.Ct. [2052] at 2065 [ (1984) ]; see also White v. Singletary, 972 F.2d 1218, 1221 (11th Cir.1992) (‘We are not interested in grading lawyers' performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.’). We recognize that ‘[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.’ Strickland, 104 S.Ct. at 2067. Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or ‘what is prudent or appropriate, but only what is constitutionally compelled.’ Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987).”

Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) (footnote omitted.) Finally,

“[i]n Strickland [ v. Washington, 466 U.S. 668 (1984) ], we made clear that, to establish prejudice, a ‘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. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Id., at 694, 104 S.Ct. 2052. In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.”

Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).

The following facts, as set forth in this court's opinion on direct appeal, are helpful to an understanding of this case:

“The evidence presented by the state tended to show that on February 25, 1988, Rayford W. Howard in St. Clair County and Randal Earl Pepper in Colbert County were robbed and murdered. The appellant and Lavon...