Petition for Writ of Certiorari — Alabama v. Watkins

93-1596

on APR 7 1994

OFFICE Ur (HE CLERE

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

STATE OF ALABAMA,

Petitioner,

Vv.

DARRYL TRAVIS WATKINS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA COURT OF CRIMINAL APPEALS

PETITION OF THE STATE OF ALABAMA

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

MELISSA G. MATH*

DEPUTY ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

(205) 242-7386

ATTORNEYS FOR PETITIONER

*Counsel of Record

QUESTION PRESENTED

Respondent was tried for and convicted of

capital robbery-murder in 1982. After obtaining

two remands from the Alabama Supreme Court,

counsel again petitioned that ee ee

certiorari review; in 1987, he presented a claim

pursuant to Batson v. Kentucky, 476 U.S.79

(1986), and asked for review under Alabama's

plain error rule, Rule 39(k), A.R.A.P. The

Alabama Supreme Court reviewed the claim, and

found no plain error in the record.

Respondent sought post-conviction relief and

asserted that counsel was ineffective in 1987 for

failing to move for supplementation of the record

with data to support the Batson claim. The

circuit court denied relief but the Alabama Court

of Criminal Appeals reversed, finding counsel

ineffective.

The question presented is whether counsel

rendered ineffective assistance when he failed to

move to supplement the record in 1987 with

information about the racial composition of the

1982 venire and the race of the jurors struck,

even though that information only became

necessary after 1987, as a result of the

subsequent developments in Batson law.

ii

PARTIES

The caption contains the names of all of the

parties to the proceedings in the courts below.

iii

TABLE OF CONTENTS

PAGE

ee Dns 640-6 0-3 e bad oe wba Se ww eeloews i

PARTIES Se hiaetaral io vara ts aon tara Wee gee) akc eer ie a a a ee iii

Nee ee ls ig etane beta aw ale ara olan iv

nS a es te a eels aie ee Vv

Ir a a ee a ee 1

a a ei wat anil Cae eae ot i a a a rete te 1

CONSTITUTIONAL PROVISIONS AND RULES INVOLVED. 2

ae Ge ee a a aloes at eae ee eee es 3

A. Statement Of The Facts From Trial... 4

es ly ee a ee 5

iS le Bes: a eS |: Se 10

THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE COURT OF CRIMINAL

APPEALS' JUDGMENT IS IN DIRECT

CONFLICT WITH THE OPINIONS OF THIS

COURT, OF FEDERAL COURTS, AND OF

ALABAMA AND OTHER STATE COURTS,

WHICH HOLD THAT EFFECTIVE

ASSISTANCE OF COUNSEL DOES NOT

INCLUDE A REQUIREMENT TO PRESENT

CLAIMS BASED ON HOW THE LAW MAY

IS Sede ie eee i eee bee a a “leew 10

I ah iano) ara lea 23

iv

ee

TABLE OF AUTHORITIES

Batson v. Kentucky,

re eee Lar Bees «564 06s 6 okbS bs O86 10

Booth v. Maryland,

ee a a ee ob ow ole wea b o'b 0-0 «Been 19

Commonwealth v. Polston,

420 Pa. Super. 233, 234, 616

mom COn, Gee Me S (1908) «occ cccccecs 21

Deutscher v. Whitley,

S64 F.2d 1152 (9th Cir. 1989)......... 18

Duren v. State,

590 So.2d 360, 365 (Ala.Crim.

App. 1990), aff'd, 590 So.

ar ees UN Pb re 6 8 6 oe os 00M we 19

Elledge v. Dugger,

823 F.2d 1439 (llth Cir.),

modified, 833 F.2d 250 (1987)

cert. denied, 108 S.Ct. 1487

EE oe OE PIE or ee ae 18

Enmund v. Florida,

458 U.S. 782 (1982), cert.

Geniedg, 113 S.Ct. 374 (1992)....ecscs 18

Ex parte Branch,

240 80.40 609 (Ala. 1967)......ccccces 15

Ex parte Watkins,

509 So.2d 1074, 1076 (Ala.

SS 8 0 6 oe a ee ee ae 13

Hall v. State,

853 S.W.2d 756, 759 (Tex.App.

PO or ae ea tae ee ede, 20-21

TABLE OF AUTHORITIES (CONT'D)

PAGE(S)

Magwood v. State,

553 So.2d 635, 638 (Ala.Crim.

App. 1989), cert. denied,

Bee BOcae SSS (ALR. AGOGO cs cecevsscvces 19

Michigan v. Mosley,

BO Oe ee gt) ee ere eee ee 18

Procter v. Butler,

831 F.2d 1251 (5th Cir. 1987),

cert denied, 482 U.S. 916 (1988)...... 18

Smith v. Murray,

age % > yah es | re eee ee 17

State v. Tarver,

No. CR-91-1494, slip op. at 3-4

(Ala.Crim.App. March 26, 1993),

aff'd on return to remand (Ala.

Cram .ApD. TERSUREY 12, LI9E) . cs ecivenss 19

Strickland v. Washington,

eR 8 ee ee ee ee 11

Swain v. Alabama,

4 SR ee ree ee 14

i ee P

0 Se § Perera eer ae we 14

SEDs, Ag G's ew ey ce A ee Oke oe eae ee 25

vi

ee

OPINIONS BELOW

The September 30, 1992 opinion of the

Alabama Court of Criminal Appeals, reversing the

circuit court's denial of post-conviction relief

(Alabama Court of Criminal Appeals No.

CR-90-989), is not yet reported. The opinion is

reproduced as Appendix A in the Appendix volume

accompanying this Petition.? The November 25,

1992 order of the Alabama Court of Criminal

Appeals denying the State's Application for

Rehearing is reproduced as Appendix B. The

Alabama Supreme Court order granting the State's

Petition for a Writ of Certiorari is reproduced

as Appendix C. The January 7, 1994 Alabama

Supreme Court order quashing certiorari is

reproduced as Appendix D. The February 19, 1991

order of the circuit court of Jefferson County

denying post-conviction relief is reproduced as

Appendix E.

Ithe Appendix to this Petition is

separately bound pursuant to Rule 14.1(k).

JURISDICTION

The order of the Alabama Supreme Court

quashing the writ of certiorari was issued

January 7, 1994. The jurisdiction of this Court

is invoked pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS AND RULES INVOLVED

The Sixth Amendment to the United States

Constitution provides, in pertinent part:

In all criminal prosecutions, the

accused shall enjoy the right ... to

have the assistance of counsel for his

defense.

Rule 10(f), Alabama Rules of Appellate

Procedure, provides:

Correction or modification of the

record.

If any difference arises as to

whether the record truly discloses what

occurred in the trial court, the

difference shall be submitted to and

settled by that court and the record

made to conform to the truth. If

anything material to either party is

omitted from the record by error or

accident or is misstated therein, the

parties by stipulation, or the trial

court either before or after the record

is transmitted to the appellate court,

or the appellate court, on proper

suggestion or of its own initiative,

2

may direct that the omission or

misstatement be corrected, and if

necessary that a supplemental record be

certified and transmitted. All other

questions as to the form and content of

the record shall be presented to the

appellate court.

Rule 39(k), Alabama Rules of Appellate

Procedure, provides, in pertinent part:

In all cases in which the death penalty

has been imposed, upon review of the

opinion of the court of criminal

appeals on certiorari, the supreme

court may notice any plain error or

defect in the proceeding under review,

whether or not brought to the attention

of the trial court, and take

appropriate appellate action by reason

thereof, whenever such error has or

probably has adversely affected the

substantial rights of the petitioner.

STATEMENT OF THE CASE

Respondent Darryl Travis Watkins was

convicted of capital murder and sentenced to

death for the 1980 robbery-murder of an elderly

man in Birmingham, Alabama. The conviction and

sentence were ultimately affirmed by the Alabama

courts, and this Court denied certiorari.

Respondent sought state post-conviction relief

and claimed, among other things, that he was

denied the effective assistance of counsel. The

circuit court denied post-conviction relief, but

3

iia

the Court of Criminal Appeals reversed that

judgment as to the effective assistance of

counsel issue. The Alabama Supreme Court granted

the State's petition for a writ of certiorari,

but later quashed the writ.

A. Statement Of The Facts From Trial

Respondent murdered 79-year-old Milton

Mayfield during a robbery of a meat market in

Birmingham, Alabama on November 26, 1980.

Respondent shot the victim at close range, after

he failed to comply with Respondent's directive

to move away from the counter. (R. 171)?

According to one witness, Mr. Mayfield did not

comply because he could not hear over the noise

of the meat slicing machine he was operating.

(R. 171) Respondent was identified by three

eyewitnesses as the man who killed Mr. Mayfield.

(R. 170, 235, 246)

2up. "refers to pages of the 1982

trial transcript.

* =

—2

The jury found Respondent guilty and

recommended that he receive the death sentence.

(R. 382, 410) After another sentence hearing,

the trial judge sentenced Respondent to death.

(R. 415)

B. Procedural History

Respondent was indicted on April 10, 1981 on

a charge of robbery-murder, pursuant to

§13A-5-31(a)(2), Code of Alabama

(1975)(repealed). J. Louis Wilkinson was

appointed to represent him at trial (R. 417), and

he represented Respondent throughout the trial

and during the convoluted appellate process in

the Alabama courts that consumed 5 years.

Initially, the Court of Criminal Appeals

affirmed the conviction and sentence. Watkins v.

State, 509 So.2d 1056 (Ala.Crim.App. 1983). On

certiorari, the Alabama Supreme Court affirmed in

part, but ordered remand of the cause for a

determination of whether belated disclosure of a

police report substantially affected Respondent's

ceca iii

right to a fair trial. Ex parte Watkins, 509

So.2d 1064 (Ala. 1984).

On remand, the trial court found that the

belated disclosure of the police report did not

substantially affect Respondent's right to a fair

trial and that it did not affect the outcome of

the trial. On return to remand, the Court of

Criminal Appeals incorporated in its opinion the

trial court's findings of fact, and affirmed the

conviction and sentence. Watkins v. State, 509

So.2d 1067 (Ala.Crim.App. 1985). That Court

denied rehearing on January 7, 1986.

On certiorari to the Alabama Supreme Court,

Respondent raised, for the first time, a claim

that a juror who merely expressed strong

disapproval of the death penalty was erroneously |

struck from the jury. That Court granted the

writ and remanded the cause to the Court of

Criminal Appeals for examination for this newly

raised claim. Ex parte Watkins, 509 So.2d 1071

(Ala. 1986). After remandment, the Court of

Criminal Appeals again affirmed the conviction

and death sentence, finding that the trial court

did not err in striking the juror for cause.

Watkins v. State, 509 So.2d 1071 (Ala.Crim.App.

1986).

On November 26, 1986, following the second

remand, Respondent again petitioned the Alabama

Supreme Court for a writ of certiorari to review

the Court of Criminal Appeals' judgment and, in

his February 18, 1987 reply brief, he raised a

claim pursuant to the newly released decision,

Batson v. Kentucky, 476 U.S. 79 (1986).

The Alabama Supreme Court reviewed the Court

of Criminal Appeals' judgment and the newly

raised Batson claim, and affirmed. With regard

to the Batson claim, the court held that it could

not find any plain error based on the record

because the record did not raise an inference of

discrimination and it did not show that the State

exercised any of its peremptory strikes to remove

black veniremembers. Ex parte Watkins, 509 So.2d

1074, 1076 (Ala. 1987). This Court denied

certiorari. Watkins v. Alabama, 484 U.S. 918

(1987).

On February 15, 1988, Respondent filed a

petition for a writ of habeas corpus in the

circuit court of Jefferson County. On February

19, 1992, after Respondent filed additional

claims and an evidentiary hearing was held, the

circuit court denied relief. (Appendix E) With

regard to Respondent's claim that counsel on

appeal was ineffective because he did not seek to

supplement the record pursuant to Rule 10(f),

A.R.A.P., to show that black veniremembers were

struck, the court held that Rule 10(f) did not

apply. It held also that when the Alabama

Supreme Court considered the Batson claim on

direct appeal, it could have ordered

supplementation if it considered supplementation

necessary. (Appendix E, p. 28)

Respondent filed an untimely notice of

appeal, and the appeal was dismissed as untimely

filed. Upon Respondent's motion, the dismissal

was set aside and the cause was restored to the

Court of Criminal Appeals' docket.

On September 30, 1992, the Court of Criminal

Appeals issued an opinion in which it held that

appellate counsel should have moved to supplement

the record in the Alabama Supreme Court in 1987

when he raised the Batson claim, and that his

failure to do so was deficient performance. The

Court of Criminal Appeals remanded the cause for

a Batson hearing to provide Respondent with the

opportunity to make out a prima facie case of

discrimination in the jury selection process.

(Appendix A) Two members of the Court of

Criminal Appeals dissented from the three-member

majority's holding.

On October 14, 1992, the State filed a

timely application for rehearing, which the Court

of Criminal Appeals overruled on November 25,

1992.

The State petitioned the Alabama Supreme

Court for certiorari review on December 9, 1992;

certiorari was granted on February 24, 1993.

(Appendix C)

On January 7, 1994, the Alabama Supreme

Court issued an order quashing the writ as

improvidently granted. (Appendix D) Four

members of the Alabama Supreme Court dissented,

arguing that when he presented the Batson claim

in 1987, counsel raised the issue properly under

the law as it existed at that time. (Appendix D,

pp. 4-8)

REASON THE WRIT SHOULD ISSUE

THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE COURT OF CRIMINAL APPEALS'

JUDGMENT IS IN DIRECT CONFLICT WITH THE

OPINIONS OF THIS COURT, OF FEDERAL

COURTS, AND OF ALABAMA AND OTHER STATE

COURTS, WHICH HOLD THAT EFFECTIVE

ASSISTANCE OF COUNSEL DOES NOT INCLUDE

A REQUIREMENT TO PRESENT CLAIMS BASED

ON HOW THE LAW MAY DEVELOP.

The Court of Criminal Appeais neld that, in

1987 when counsel raised a claim pursuant to

Batson v. Kentucky, 476 U.S. 79 (1986), on

certiorari following the second remand from the

Alabama Supreme Court, he should have attempted

to supplement the record to show the racial

composition of the venire and the race of each

veniremember struck by the prosecution in

Respondent's 1982 trial. This holding conflicts

with the established principles of law announced

by this Court, and by federal and state courts,

because this Court and others have repeatedly

10

held that counsel do not have to predict the

future development of the law in order to provide

effective assistance.

A defendant cannot succeed on an ineffective

assistance of counsel claim unless he proves

deficient performance by counsel and prejudice.

Strickland v. Washington, 466 U.S. 668 (1984).

Strickland mandates that when reviewing a claim

of ineffective assistance of counsel, the

reasonableness of counsel's actions be judged as

of the time of counsel's conduct. 466 U.S. at

690. The time of counsel's conduct here is

February 18, 1987, when he raised the Batson

claim. In his brief on this claim, counsel

argued:

The criteria set out in Batson v.

Kentucky, supra, provides that to

establish a prima facie case of

descrimination [sic] the appellant must

show the following:

(1) The appellant is a member of "a

cognizable racial group" and "the

prosecutor has exercised peremptory

challenges to remove from the venire

members of the defendant's race."

(2) That "peremptory challenges

constitute a jury selection practice

that permits ‘those to discriminate

11

who are of a mind to discriminate.'"

(This element is a given.)

(3) That the prosecutor excluded

veniremen from the jury on the basis

of their race.

The appellant argues that he has

presented a prima facie case of

discrimination, in that he is black and

blacks were struck from the venire by

the prosecutor's use of peremptory

challenges.

Appellant is aware that this issue

has not been presented previously, but

under the plain error exception to Rule

39(k), A.R.A.P., the appellant would

request that this Court review the

issue since it has "adversely affected

the substantial rights of the

petitioner."

(SR. 534-535)°

Susp. "refers to pages of the

supplemental record in this post-conviction

proceeding.

12

—— | | “iii

Counsel not only raised a new issue based on

a case decided four years after trial, he did so

in language that virtually paralleled the

language used by this Court in the Batson

decision. Counsel's actions at that time were

reasonable and, in fact, he succeeded in

obtaining plain error review by the Alabama

Supreme Court. Ex parte Watkins, 509 So.2d 1074,

1076 (Ala. 1987) .4 This does not support a

finding of ineffective assistance of counsel.

The Court of Criminal Appeals held that

counsel's performance was unreasonable, however,

because when he raised the issue, he did not move

to supplement the record with data showing the

number of blacks on the venire and race of the

veniremembers struck by the prosecution.

4when it reviewed the claim, the court

noted that the record did not disclose the

prosecutor's strikes or the race of the

veniremembers struck, but it did not remand the

cause in order for that information to be

included in the record, which it could have done ont

at that time. It reviewed the existing record

and found no plain error.

13

(Appendix A, pp. 25-26). The Court of Criminal

Appeals stated that this was "necessary" and

"desired" Batson information (Appendix A, pp. 11,

14), that the information was proper for a motion

pursuant to Rule 10(f), A.R.A.P., and that the

motion would have been granted.

In 1982, when Respondent was tried for this

robbery-murder, Swain v. Alabama, 380 U.S. 202

(1965), controlled objections to the prosecutor's

peremptory challenges as being based on race.

The fact that a prosecutor struck any or all

black veniremembers in one case did not establish

a Swain claim because the proof required under

Swain was that the prosecutor systematically

excluded all black veniremembers over time. 380

U.S. at 223-224. At the evidentiary hearing in

this case, counsel testified that he did not

object to the prosecutor's strikes at trial

because he did not believe he had a valid

objection based on Swain; as a result, the record

of the prosecution's peremptory strikes and the

racial composition of the venire was not ever

14 |

included in the record.” (Hearing R. 18, 63-64)

It is precisely this information, however, that

the Court of Criminal Appeals determined was

"necessary" and "desired".

This Court in Batson deliberately avoided

formulating particular procedures to be followed

in implementing its judgment. 476 U.S. at 99-100

n. 24. The Alabama Supreme Court first announced

general guidelines for lower courts in Ex parte

Branch, 526 So.2d 609 (Ala. 1987). In Ex parte

Branch, the court "set forth the showing required

by a defendant in order to raise a Batson

challenge". 526 So.2d at 616. Also in Ex parte

Branch, the court stated for the first time that

the evidence relevant to ruling on a Batson claim

"should become a part of the trial record so that

there will be a sufficient record for appellate

>The list of veniremembers and the jury

strike sheets are not usually included in the

trial record. Magwood v. State, 553 So.2d 635,

639 (Ala.Crim.App. 1989); Cochran v. State, 548

So.2d 1062, 1070 (Ala.Crim.App. 1989), cert.

denied, 493 U.S. 900 (1989).

15

review." 526 So.2d at 622. The court also

stated that it was simply illustrating the types

of evidence, based on recent developments in the

case law, that could be used and that,

"Certainly, as the law develops, more may be

added." 526 So.2d at 625.

Thus, when Respondent was tried in 1982,

there were no guidelines for making a Batson

claim and there were no guidelines for preserving

a record to establish a Batson claim; no

guidelines for establishing a Batson claim were

set forth in Alabama until 1987.° In holding

that trial counsel's performance was deficient

because he failed to put forth the "necessary

Batson information" when no court had yet

determined what information was necessary, the

Cover two years later, the Alabama

Supreme Court acknowledged that, despite the

attempt made in Ex parte Branch to avert

confusion, there had nonetheless been "a great

amount of confusion over the interpretation to be

given to Batson". Harrell v. State, 555 So.2d

263, 265 (Ala. 1989)(further attempting to

clarify Batson analysis).

16

Court of Criminal Appeals found counsel

ineffective because he failed to forecast changes

in the law. This decision is irreconcilable with

established precedent.

In Strickland v. Washington, this Court

Clearly stated that a fair assessment of

counsel's performance requires an evaluation of

counsel's actions from counsel's perspective at

the time, with every effort made to "eliminate

the distorting effects of hindsight." 466 U.S.

at 689. In Smith v. Murray, 477 U.S. 527 (1986),

this analysis was applied. After counsel in that

case chose not to even pursue a claim on appeal

that later case developments suggested would have

succeeded, this Court refused to find counsel

ineffective, and instead reiterated from

Strickland v. Washington the standard that a fair

assessment of attorney performance requires an

evaluation of his conduct from counsel's

perspective at the time.

Numerous federal courts of appeal have

followed this mandate and have held that

effective representation does not include the

17

requirement to predict future developments in the

law. E.g., Deutscher v. Whitley, 884 F.2d 1152

(9th Cir. 1989) (counsel not ineffective for

failing to object to imposition of death penalty

for unintentional murder, because Enmund v.

Florida, 458 U.S. 782 (1982), questioning

imposition of death penalty for felony murder had

not yet been decided), cert. denied, 113 S.Ct.

374 (1992); Elledge v. Dugger, 823 F.2d 1439

(llth Cir.), modified, 833 F.2d 250 (1987)

(failure to object at trial to reinterrogation in

conjunction with Miranda warnings before Michigan

v. Mosley, 423 U.S. 96 (1975) was released not

ineffective), cert. denied, 108 S.Ct. 1487

(1988); Procter v. Butler, 831 F.2d 1251 (5th

Cir. 1987) (counsel not ineffective for failing

to make Batson objection in 1976 trial), cert.

denied, 482 U.S. 916 (1988).

In addition, Alabama courts have properly

refused to find counsel ineffective for failing

to predict future developments in the law. E.g.,

State v. Tarver, No. CR-91-1494, slip op. at 3-4

(Ala.Crim.App. March 26, 1993)(counsel not

18

ineffective for failing to make a Batson

objection in a pre-Batson case), aff'd on return

to remand (Ala.Crim.App. February 11, 1994);

Duren v. State, 590 So.2d 360, 365 (Ala.Crim.App.

1990)(counsel not ineffective for failing to

object to victim impact argument because Booth v.

Maryland, 482 U.S. 496 (1987) was decided three

years after trial), aff'd, 590 So.2d 369 (Ala.

1991); Magwood v. State, 553 So.2d 635, 638

(Ala.Crim.App. 1989)(counsel not ineffective for

failing to raise a Batson objection in 1982

trial), cert. denied, 553 So.2d 635 (Ala. 1989)’

Not only did the Court of Criminal Appeals

in this case condemn counsel for his inability to

predict the substantial developments in Batson

7the Court of Criminal Appeals in

Magwood also held that, even though the direct

appeal was pending when Batson was announced,

counsel was not ineffective for failing to even

raise a Batson issue or to move to supplement the

record on appeal with the racial composition of

the venire or the race of the jurors struck. 553

So.2d at 639-640. Counsel in the present case

surpassed the performance of Magwood's counsel by

raising the Batson issue on appeal, yet he was

found ineffective while Magwood's counsel was not!

19

law, but the court's own analysis is based almost

exclusively on recently decided cases that,

themselves, apply the procedural developments in

Batson law that did not exist in 1987 when

counsel raised his Batson claim. (Appendix A at

23-26) The court's citation to several recent

cases which have been remanded for Batson

hearings vividly emphasizes the error in the

Court of Criminal Appeals' decision, that is it

refused to evaluate counsel's conduct from his

perspective at the time and it instead

specifically relied on the 20/20 vision hindsight

so often provides.

The Court of Criminal Appeals' failure to

"eliminate the distorting effects of hindsight”

which Strickland v. Washington, 466 U.S. at 689

requires further contributed to the anomalous,

unjust result that the court reached in this case.

Courts in other states also follow

Strickland v. Washington, and refuse to find

counsel ineffective for failing to predict future

legal developments. See, e.g., Hall v. State,

853 S.W.2d 756, 759 (Tex.App. 1993); Commonwealth

20

on Rte Ste Shee

v. Polston, 420 Pa. Super. 233, 234, 616 A.2d

669, 680 n. 5 (1992).

The analysis applied by the Court of

Criminal Appeals in this case cannot be

reconciled with the analysis followed by this

Court, federal circuit courts, courts in other

states, and Alabama courts in other cases, which

have consistently refused to hold counsel's

performance ineffective for failing to forecast

developments in the law. Accordingly, review of

the decision below is necessary to ensure that

the Alabama Court of Criminal Appeals applies the

standards set forth by this Court in Strickland

v. Washington in the same manner as this Court

and the federal courts of appeal do, and in the

Same way Alabama's and other states' courts have

applied the test in other ineffective assistance

of counsel cases.

The decision below, if allowed to stand,

will have a substantial adverse effect on the

administration of justice and on the finality of

judgments in Alabama. Each year, thousands of

convicted criminals file post-conviction

21

proceedings in state and federal courts and raise

ineffective assistance of counsel claims. If the

Strickland v. Washington standards are ignored

and defendants can succeed on claims based purely

on hindsight and developments in the law that.

occurred months or years after trial, the sense

of finality due to criminal judgments will be

seriously compromised. The concept of providing

reasonably effective assistance of counsel under

the circumstances of the case will have no

meaning, because all Alabama courts will be free

to judge counsel's conduct by whatever law exists

when the case is presented to that court for

post-conviction review. The decision below

therefore merits the attention of this Court.

22

CONCLUSION

The petition for a writ of certiorari should

be granted.

Respectfully submitted,

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

MELISSA G. MATH

DEPUTY ATTORNEY GENERAL

April, 1994

23