Should ineffective assistance of counsel claims in Alabama be raised on direct appeal or in a Rule 32 petition?

Looking from the outside in, it might appear that the law is giving mixed signals. Rule 32.2(d) of the Alabama Rules of Criminal Procedure states that ineffective assistance of counsel claims “must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable.” [1] Rule 32.2(a)(1) also states that no relief may be granted based on any ground which could have been raised on direct appeal. [2]

So, which is it? Should ineffective assistance of counsel claims be raised on direct appeal or in a Rule 32 petition?

Like most questions of law, the answer is “it depends.” First, we should remember the standard. A claim of ineffective assistance of counsel requires proof of (1) counsel’s deficient performance, and (2) resulting prejudice. [3] On the deficient performance prong, if counsel made a strategic or tactical decision, that decision cannot constitute ineffective assistance of counsel as long as the decision is supported by reasonable, professional judgment. [4] If the attorney failed to investigate the options and make a reasonable choice between them, the decision is not immunized as tactical or strategic. [5]

Thus, much of the consideration for whether an ineffective assistance of counsel claim could have been raised on direct appeal turns on whether there is any conceivable strategic basis for counsel’s decision. The absence of a conceivable strategic basis is rare.

For instance, the Alabama Supreme Court found there was no possible strategic basis for an attorney advising his client to plead guilty to possessing cocaine when laboratory evidence showed the powder he possessed was not cocaine. [6] However, this is the exception and not the rule. For the most part, the rule is that an ineffective assistance of counsel claim cannot be presented on direct appeal where the claim was not first raised in the trial court and there has been no opportunity to develop the record on the matter. [7] Unless counsel’s deficiency was “so blatant and clear on the face of the record that there was no room for interpretation,” the claim must be made in a Rule 32 petition. [8]

Ineffective assistance of counsel claims are important. They are disallowed in successive Rule 32 petitions; thus, petitioners only have one opportunity to address them. If you or someone you love suffered from an attorney’s ineffective assistance, contact Peter Armstrong, Attorney at Law, for a free consultation.

Citations:

1.    Ala. R. Crim. P. 32.2, available at https://judicial.alabama.gov/docs/library/rules/cr32_2.pdf

2.    Id.

3.    Strickland v. Washington, 466 U.S. 668, 687-94 (1984). (https://supreme.justia.com/cases/federal/us/466/668/)

4.    Id. at 690-91.

5.    Crawford v. Head, 311 F.3d 1288, 1316 (11th Cir. 2002). (https://www.casemine.com/judgement/us/5914b869add7b0493478514f)

6.    Ex parte Jefferson, 749 So. 2d 406, 408 (Ala. 1999). (https://www.courtlistener.com/opinion/1711245/ex-parte-jefferson/)

7.    Montgomery v. State, 781 So. 2d 1007, 1010 (Ala. Crim. App. 2000) (citations omitted). (https://law.justia.com/cases/alabama/court-of-appeals-criminal/2000/cr-98-2113-0.html)

8.    Id.