# Petition for Writ of Certiorari — Alabama v. Watkins

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1377%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1137

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1377%3A1. Public record. Not legal advice.