Frequently, our clients bring up ideas about their trial counsel being ineffective and wanting to raise this issue on appeal. It is technically possible to raise claims of ineffective assistance of counsel on direct appeal—but there are a number of reasons why, in Alabama, it is the wrong time and method for raising those claims. Instead, the proper way to raise claims of ineffective assistance is through a post-conviction proceeding by rule a Rule 32 petition after the direct appeal process has ended.
First off, ineffective assistance claims are generally governed by the standard set by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a successful claim of ineffective assistance requires demonstrating two things: (1) that the attorney made a mistake and (2) that a reasonable probability exists that the error effected the outcome of the trial—that it prejudiced the defendant. Strickland also requires courts considering ineffective assistance claims to afford deference to trial counsel’s decisions as long as those decisions were reasonable. This means strategic decisions are very difficult to challenge as long as counsel had a reason for those decisions.
One major issue with raising claims of ineffective assistance of counsel is that they almost always involve things that were not done by trial counsel on the record at trial or challenge things that were done for reasons that aren’t apparent based on the record at trial. On direct appeal, the appellate courts will only consider issues that are contained in the record and that are properly preserved for appellate review. The only way to raise claims of ineffective assistance on direct appeal is to properly raise them in a motion for new trial under Rule 24.1. There are a number of problems with this method.
First, defendants generally only get one bite at the apple for ineffective assistance claims. Under Rule 32.2(d): “Any claim that counsel as ineffective must be raised as soon as possible, either at trial, on direct appeal, or in the first Rule 32 petition whichever is applicable. In no event can relief be granted on a claim of ineffective assistance of trial or appellate counsel raised in a successive petition.” Because of this rule, when a defendant raises a claim of ineffective assistance of counsel, they need to raise every potential claim and raise those claims properly to avoid having the claims dismissed on technical grounds. This problem is magnified by the following problems.
Second, ineffective assistance claims have a high pleading burden. Specific failures or acts have to be identified and the prejudice must be identified and explained. Claiming ineffective assistance of counsel isn’t enough, a defendant has to show and explain in detail why counsel was ineffective. Simply saying that trial counsel was ineffective for not calling witness X or didn’t object to question Y isn’t sufficient. It has to be explained as why trial counsel’s decision to not call a witness or object to a question was a mistake and how that mistake impacted the jury’s verdict with facts to back it up.
Third, meeting this pleading burden is difficult in a motion for new trial because the motion must be filed no later than 30 days after the sentence is pronounced. At that point, it is very rare to have transcripts of the trial to review for any potential ineffective assistance issues. Also, because ineffective assistance claims usually involve things not in the record, a motion for new trial alleging ineffective assistance based on evidence outside the record must be verified and supplemented with the evidentiary support for the claim—such as affidavits.
Finally, trial counsel is never expected to raise ineffective assistance claims against themselves. So, unless a defendant has new counsel at the motion for new trial stage, it is difficult to raise a claim in a motion for new trial. Even when a defendant has new counsel, however, it is difficult for new counsel to become sufficiently acquainted with the record without the transcripts and to investigate and develop evidence for a potential ineffective assistance claim in the 30-day filing window for a motion for new trial.
The Court of Criminal Appeals recently rejected ineffective assistance claims that were raised on direct appeal in Randolph v. State. The first claim was that trial counsel was ineffective for not calling two specific witnesses and alleged what they would have testified regarding. But, although the motion was verified, it did not include affidavits from the potential witnesses about what they would have testified to. Instead, the motion merely stated what the witnesses would testify to. But, without an affidavit from the witnesses, that was only hearsay and hearsay can’t support a motion for new trial. Another ineffective assistance claim was that trial counsel should have called various character witnesses, but those witnesses were not identified by name.
These are just examples of the problems that come up when raising ineffective assistance claims in a motion for new trial and on direct appeal. When these types of problems go badly, they have a serious effect on a defendant’s ability to later raise the claims properly in a Rule 32 petition.
The Alabama Supreme Court has long recognized these problems and encouraged defendants to avoid them. While Rule 32.2(d) states that claims of ineffective assistance should be raised as soon as possible—either at trial, on direct appeal, or in the first Rule 32 petition—in Ex parte Ingram, 675 So. 2d 863 (Ala. 1996), the Alabama Supreme Court acknowledged the problems that had arisen from a previous rule requiring ineffective claims to be raised in motions for new trial and on direct appeal if a defendant had new counsel at the motion for new trial stage. Instead, the Court noted that when it isn’t reasonable to raise the claim in a motion for new trial. “the proper method for presenting that claim … is to file a Rule 32 petition.”
Compared to motions for new trial, Rule 32 petitions have a much longer filing window—one year from the certificate of judgment if the conviction is appealed or one year from the date the time for appealing ended. This extra time is invaluable in reviewing the records, investigating potential claims, and gathering the evidentiary support necessary to avoid the procedural hurdles and properly raise claims of ineffective assistance of counsel.
If you are interested in pursuing a Rule 32 petition, please reach out to us.
