William L. Pfeifer, Jr.

Writing for About.com – The About.com Law GuideSite

William L. Pfeifer, Jr. — Sat, 14 Aug 2010 19:40:30 +0000

Many of my clients know that in addition to my law practice, I am also a freelance legal writer. I’ve recently been given the opportunity to combine those two skills into one task – writing a website for lawyers for About.com. About.com is owned by the New York Times Company, and I’m looking forward to building this site for them.

While this is a big project, I will still be maintaining a full-time law practice. Practicing law is still my “day job.” Over the years, I’ve learned how to manage my time so that I can do my regular job as well as indulge my love of writing. So now, in addition to writing appellate briefs, I’ll be writing about law practice management issues too.

The new website is located at law.about.com, and is written primarily for attorneys seeking information on how to improve and develop their law practices. Topics covered will include law practice management, law firm marketing, law office technology, and other issues that come up in the operation of a law office. While the site is written primarily for lawyers, the content is available for reading by anyone with an interest in the issues attorneys face in their law practices.

The site is new, so I am still in the process of developing content for all of the categories. Over the next few weeks a substantial amount of new material will be going live on the site. The new law site also includes a blog where I’ll be posting some comments, while also maintaining the other blogs and websites I write for as well.

Some of the recent articles I’ve added to the About.com Law website include:

There are a lot of other articles on the site to read as well, and many more are on the way. Take a few minutes to visit the site, and let me know of any suggestions you have for it.

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To contact me about handling your case, please give me a call at (800) 737-3702 Ext. 1, or use the online Contact form on this website to send me an email about your case.

Alabama State Bar rules require the following disclaimer in all attorney advertisements: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Writing for About.com – The About.com Law GuideSite (williampfeifer.com)
Law Practice Strategy: A New Resource for Solo and Small Firms (customerthink.com)
Creative Law Practice: Love Your Clients, Love Yourself (customerthink.com)

Changes coming to the Alabama Rules of Appellate Procedure

William L. Pfeifer, Jr. — Wed, 19 May 2010 03:00:01 +0000

On March 1, 2010, the Alabama Supreme Court issued an order making amendments to the Alabama Rules of Appellate Procedure. These updates do not go into effect until June 1, 2010, and the version of the appellate rules posted on this website will be updated to reflect those updates on or before that date. Until then, those interested in seeing what changes are on the way can download a copy of the order by clicking the following link: ARAP amendments.

To discuss your options in appealing your case, call Bill Pfeifer at (800) 737-3702 Extension 1. You can also use the online Contact form on this website to send him an email about your situation.

Alabama Rules of Appellate Procedure now available online (williampfeifer.com)
Hidden tax in the courts as Alabama Supreme Court raises filing fees (alabamalawjournal.com)

Alabama Rules of Appellate Procedure now available online

William L. Pfeifer, Jr. — Wed, 05 May 2010 18:53:49 +0000

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The Alabama Rules of Appellate Procedure are now available on this website. The version of the rules posted is current through the most recent amendments that went into effect on February 1, 2009.

Posting the Rules of Appellate Procedure to our website is part of our effort to increase public access to information about Alabama law. These rules provide the guidelines that govern the Alabama appeals process, and are the starting point for understanding appellate law and procedure. For more information about the appellate law practice of William L. Pfeifer, Jr., click here.

The parent page for our directory of the Alabama Rules of Appellate Procedure can be found here. Links to the individual rules are posted below.

For more information about Alabama appellate courts and the appeals process, call Bill Pfeifer at (800) 737-3702 Extension 1. You can also use the online Contact form on this website to send him an email about your case.

Using Rule 32 to set aside a guilty plea conviction in Alabama – Part 1 (williampfeifer.com)
Waiver of the right to appeal a conviction is enforceable, rules 7th Circuit Court of Appeals (examiner.com)
Using Rule 32 to set aside a guilty plea in Alabama – Part 2 (williampfeifer.com)
Appeal of former Vikings great Carl Eller rejected (seattletimes.nwsource.com)

Effective assistance of counsel includes accurate advice about the immigration consequences of a guilty plea (Alabama Rule 32)

William L. Pfeifer, Jr. — Wed, 21 Apr 2010 14:15:38 +0000

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The United States Supreme Court recently held that an attorney’s duty to provide effective assistance of counsel includes the responsibility of providing accurate advice about the immigration consequences of a guilty plea. Providing incorrect legal advice to an immigrant about the deportation consequences of a guilty plea to drug trafficking charges constitutes ineffective assistance of counsel, and can serve as grounds for setting aside the conviction. The case in question involved a guilty plea in the State of Kentucky, but the Supreme Court’s ruling applies to every state. In Alabama, such a petition would be raised under Rule 32 of the Alabama Rules of Criminal Procedure, which provides Alabama’s method for asserting that a defendant received ineffective assistance of counsel.

In the case of Padilla v. Kentucky, the Supreme Court reviewed a request filed by Jose Padilla to set aside his guilty plea to drug trafficking charges. Padilla was a citizen of Honduras, but had lived in the United States for over 40 years. He even served in the United States military during the Vietnam War, and was living in the United States as a lawful permanent resident. However, he never applied for American citizenship.

Padilla entered a guilty plea in Kentucky to charges of trafficking in marijuana in 2002, after the tractor trailer he was driving was found to contain a large amount of marijuana. After pleading guilty, Padilla learned that one of the consequences of his guilty plea was that he would be deported.

Padilla filed a petition to set aside his guilty plea and conviction on the basis of ineffective assistance of counsel. He asserted that his attorney erroneously advised him that his guilty plea would not cause him to be deported because he had lived in the United States for such a long time. Padilla asserted that he would not have entered a guilty plea to the charge if he had known he would be deported, and that he would have fought the allegation at trial if his attorney had not given him incorrect advice.

The Kentucky Supreme Court ruled against Padilla, ruling that attorneys do not have a duty to advise their clients about the collateral consequences of a guilty plea. The United States Supreme Court disagreed and overruled the lower court rulings, holding that holding that “constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation.”

The Supreme Court ruled that a defendant was entitled to “the effective assistance of competent counsel” when making the decision over whether or not to enter a guilty plea to a criminal charge. The Court stated they have never drawn a distinction between direct and collateral consequences when defining what constituted reasonable professional assistance, and noted that “the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.” Acknowledging that immigration law is a complex legal specialty and that criminal defense lawyers are not necessarily expected to know all of the intricacies of that field of law, the Court stated that where the immigration consequences of a guilty plea are unclear an attorney can simply advise the defendant that a guilty plea “may carry a risk of adverse immigration consequences.” However, where the deportation consequences are clear (such as when a person is pleading guilty to a serious drug trafficking felony), the attorney must give correct advice.

A copy of the Supreme Court’s opinion in United States v. Padilla can be downloaded by clicking the following link: 08-651.

If you entered a guilty plea based on incorrect advice given to you by your attorney, you may be able to assert a challenge to the conviction under Rule 32 of the Alabama Rules of Criminal Procedure. If you would like to discuss your case with our office, please feel free to call us at (800) 737-3702 Extension 1 or fill out our Contact form to submit your inquiry online.

Supreme Court says attorneys must advise immigrants of deportation consequences of guilty pleas (examiner.com)
Court Requires Warning About Deportation Risk (nytimes.com)
Using Rule 32 to set aside a guilty plea in Alabama (williampfeifer.com)

Rule 32 of the Alabama Rules of Criminal Procedure

William L. Pfeifer, Jr. — Wed, 21 Apr 2010 13:54:35 +0000

In recent weeks, our office has been contacted more and more by people looking for information about filing a claim against their attorney under Rule 32 of the Alabama Rules of Criminal Procedure. Not to be confused with Rule 32 of the Alabama Rules of Judicial Administration which deals with child support, Rule 32 of the Alabama Rules of Criminal Procedure provides a method for defendants to challenge their conviction in a trial court. It is normally filed after a defendant has already lost his or her direct appeal of a conviction, though appealing a conviction is not mandatory before filing a Rule 32 petition in most cases.

We have posted several articles about Rule 32 petitions on this blog, but we have not previously posted a copy of Rule 32 itself. Since so many people seem to be looking for information about Rule 32 petitions, we thought it would be useful to place a copy of the rule on our website.

The following is a copy of Rule 32 in it’s entirety, including all of the subsections of the Rule and the committee comments issued concerning the Rule. The general form which the rules say a petition should follow is also included in an appendix to the rule. For more information about filing a Rule 32 petition in your own case, please call me at (800) 737-3702 Extension 1 or fill out the Contact form on our site to send me an email message online.

ALABAMA RULES OF CRIMINAL PROCEDURE
Rule 32. Post-conviction remedies
Rules amended effective July 1, 2008
Rule 32.1. Scope of remedy
Subject to the limitations of Rule 32.2, any defendant who has been convicted of a criminal offense may institute a proceeding in the court of original conviction to secure appropriate relief on the ground that:
(a) The constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
(b) The court was without jurisdiction to render judgment or to impose sentence.
(c) The sentence imposed exceeds the maximum authorized by law or is otherwise not authorized by law.
(d) The petitioner is being held in custody after the petitioner’s sentence has expired.
(e) Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
(1) The facts relied upon were not known by the petitioner or the petitioner’s counsel at the time of trial or sentencing or in time to file a posttrial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding and could not have been discovered by any of those times through the exercise of reasonable diligence;
(2) The facts are not merely cumulative to other facts that were known;
(3) The facts do not merely amount to impeachment evidence;
(4) If the facts had been known at the time of trial or of sentencing, the result probably would have been different; and
(5) The facts establish that the petitioner is innocent of the crime for which the petitioner was convicted or should not have received the sentence that the petitioner received.
(f) The petitioner failed to appeal within the prescribed time from the conviction or sentence itself or from the dismissal or denial of a petition previously filed pursuant to this rule and that failure was without fault on the petitioner’s part.
A petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice. (Amended 3-22-02, eff. 8-1-02; Amended 1-13-05, eff. 6-1-05.)
Note from reporter of decisions: The order amending Rule 32.1(f) and Rule 32.2(c), effective June 1, 2005, is published in the Alabama Reporter.
Notes from the reporter of dections: The order adding the Committee Comments to Rule 32.1, effective January 9, 2001, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
The order amending Rule 32.1, effective August 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
Committee Comments Effective December 1, 1997
In Cantu v. State, 660 So.2d 1026 (Ala. 1995), the Alabama Supreme Court clarified its holding in Ex parte Rivers, 597 So.2d 1308 (Ala. 1991). The Court in Cantu held that the failure of a trial court to properly advise a defendant of the consequences of a guilty plea is not a jurisdictional defect that may be raised at any time, but that it can be raised in a timely filed Rule 32 petition. The Court stated that although the failure to inform a defendant of the proper minimum and maximum sentences that can be imposed is not a jurisdictional defect, such a failure does raise a question of the voluntariness of a guilty plea based on that misinformation. Because the failure goes to the voluntariness of the plea, the plea is subject to collateral challenge, under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1729, 23 L.Ed.2d 274 (1969). The Court addressed challenges to the voluntariness of guilty pleas:
“Even though a defendant could file a motion under the provisions of Rule 14 [,Alabama Rules of Criminal Procedure,] to withdraw a plea of guilty and could appeal a trial court’s ruling on the motion, the defendant would not be precluded from raising, in a timely filed post-conviction proceeding, the question of the voluntariness of the plea.”
660 So.2d at 1029.
If a trial judge fails to strictly comply with the procedural requirements for the entry of a guilty plea (e.g., fails to properly advise the defendant of the minimum and maximum sentences the defendant could receive), the defendant may seek to withdraw the plea of guilty and give the trial court an opportunity to rule on any alleged error and thereby preserve error in the record for appeal, or the defendant can raise the question of noncompliance in a timely filed post-conviction proceeding.
Committee Comments Effective January 9, 2001
Postconviction petitions may be filed in the court of original conviction by any defendant who has been convicted of a criminal offense. Rules 32.6(a), 32.7(a), and 32.10(a) recognize that these petitions may be filed in municipal courts; such postconviction relief, however, will rarely be sought since a defendant is entitled to appeal a municipal-court conviction to the circuit court for a trial de novo.

Rule 32.2. Preclusion of remedy
(a) PRECLUSION OF GROUNDS. A petitioner will not be given relief under this rule based upon any ground:
(1) Which may still be raised on direct appeal under the Alabama Rules of Appellate Procedure or by posttrial motion under Rule 24; or
(2) Which was raised or addressed at trial; or
(3) Which could have been but was not raised at trial, unless the ground for relief arises under Rule 32.1(b); or
(4) Which was raised or addressed on appeal or in any previous collateral proceeding not dismissed pursuant to the last sentence of Rule 32.1 as a petition that challenges multiple judgments, whether or not the previous collateral proceeding was adjudicated on the merits of the grounds raised; or
(5) Which could have been but was not raised on appeal, unless the ground for relief arises under Rule 32.1(b).
(b) SUCCESSIVE PETITIONS. If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court wis without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.
(c) LIMITATIONS PERIOD. Subject to the further provisions hereinafter set out in this section, the court shall not entertain any petition for relief from a conviction or sentence on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed: (1) In the case of a conviction appealed to the Court of Criminal Appeals, within one (1) year after the issuance of the certificate of judgment by the Court of Criminal Appeals under Rule 41, Ala. R. App. P.; or (2) in the case of a conviction not appealed to the Court of Criminal Appeals, within one (1) year after the time for filing an appeal lapses; provided, however, that the time for filing a petition under Rule 32.1(f) to seek an out-of-time appeal from the dismissal or denial of a petition previously filed under any provision of Rule 32.1 shall be six (6) months from the date the petitioner discovers the dismissal or denial, irrespective of the one-year deadlines specified in the preceding subparts (1) and (2) of this sentence; and provided further that the immediately preceding proviso shall not extend either of those one-year deadlines as they may apply to the previously filed petition. The court shall not entertain a petition based on the grounds specified in Rule 32.1(e) unless the petition is filed within the applicable one-year period specified in the first sentence of this section, or within six (6) months after the discovery of the newly discovered material facts, whichever is later, provided, however, that the one-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of the precursor of this rule, i.e., April 1, 1987.
(d) CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL. Any claim that counsel was ineffective must be raised as soon as practicable, 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. (Amended 3-22-02, eff. 8-1-02; Amended eff. 7-1-02; Amended eff. 8-8-02; Amended 1-13-05, eff. 6-1-05.)
Note from reporter of decisions: The order amending Rule 32.1(1) and Rule 32.2(c), effective June 1, 2005, is published in the Alabama Reporter.
Notes from the reporter of decisions: The order amending Rule 32.2, effective August 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from So. ___ 2d.
The order amending Rule 32.2(a), effective July 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So.2d.
The order amending Rule 32.2(a), effective August 8, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.
The order adopting the “Court Comment of January 27, 2004, to Amendment to Rule 32.2 Effective August 1, 2002,” is published in that volume of Alabama Reporter that contains Alabama cases from So. 2d. Justice Johnstone concurred in part and dissented in part. See his special writing in Ex Parte Gardner, [Ms. 1030309, January 27, 2004], 2004 Ala. LEXIS 8, ___ So. 2d ___ (Ala. 2004).
Court Comment of January 13, 2005, to Amendment to Rule 32.2(c) Effective June 1, 2005
The amendment to Rule 32.2(c) sets a deadline of six months from discovery for filing a Rule 32.1(f) petition seeking an out-of-time appeal from the dismissal or denial of a previously filed Rule 32 petition; it expressly preserves the existing one-year deadlines for the filing of the previously filed petition.
Court Comment of January 27, 2004, to Amendment to Rule 32.2 Effective August 1, 2002
This Court on March 22, 2002, amended Rule 32.2 effective August 1, 2002. That amendment, among other things, changed the period within which a defendant could file a Rule 32 petition from two years to one year. On July 1, 2002, this Court issued an order explaining the effective-date provision as it related to that limitations period. It appears that this Court’s intent as to the effective date requires further clarification.
The triggering date for calculating the timeliness of a postconviction petition pursuant to Rule 32, Ala. R. Crim. P., is either the date on which the Court of Criminal Appeals issues its certificate of judgment or, if no appeal is taken, the date upon which the time for filing an appeal lapses. The order of this Court issued on March 22, 2002, amending Rule 32.2, Ala. R. Grim. P., provided that the amendment of Rule 32.2 was effective August 1, 2002. That effective-date language shall be interpreted to mean:
(1) that defendants in cases in which the triggering date occurs on or before July 31, 2001, shall have two years from the triggering date within which to file a postconviction petition pursuant to Rule 32, Ala. R. Grim. P.;
(2) that defendants in cases in which the triggering date occurs during the period beginning August 1, 2001, and ending July 31, 2002, shall have one year from August 1, 2002, within which to file a postconviction petition pursuant to Rule 32, Ala. R. Grim. P. ; and
(3) that defendants in cases in which the triggering date occurs on or after August 1, 2002, shall have one year from the triggering date within which to file a postconviction petition pursuant to Rule 32, Ala. R. Grim. P.
Justice Johnstone, in Ex Parte Gardner, 2004 Ala. LEXIS 8, stated a concern that the second numbered subparagraph of the new Court Comment, the one progressively shortening the filing times for cases with triggering dates during the period beginning on August 1, 2001 ending on July 31, 2002, begins the time shortening effect of the time-shortening amendment by degrees before its August 1, 2002 effective date. While recognizing that this subparagraph is essentially the same as the July 1, 2002 Court Comment interpreting the effective date of the time-shortening amendment, Justice Johnstone suggests that the July 1, 2002 Court Comment is invalid for the same reason, and suggests that this provision be deleted from the 2004 Court Comment. Justice Johnstone proposes changing the date in the first numbered subparagraph, the one that recognizes a full two-year filing time for cases with triggering dates on or before July 31, 2001; the proposed date being July 31, 2002, so that this subparagraph would recognize the full two-year filing time for all cases with triggering dates preceding the August 1, 2002 effective date of the time-shortening amendment, under the theory that such a change would comport with the meaning of effective date.

Rule 32.3. Burden of proof
The petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief. The state shall have the burden of pleading any ground of preclusion, but once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.

Rule 32.4. Nature of proceeding and relation to other remedies
A proceeding under this rule displaces all post-trial remedies except posttrial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule. Proceedings under this rule shall be governed by the Rules of Criminal Procedure, except that the trial court in its sole discretion may allow the taking of depositions for discovery or for use at trial.

Rule 32.5. Venue
Petitions filed under this rule shall be filed in and decided by the court in which the petitioner was convicted. If a petition is filed in another court, it shall be transferred to the court where the conviction occurred.

Rule 32.6. Commencement of proceedings
(a) FORM, FILING, AND SERVICE OF PETITION. A proceeding under this rule is commenced by filing a petition, verified by the petitioner or petitioner’s attorney, with the clerk of the court. A petition may be filed at any time after entry of judgment and sentence (subject to the provisions of Rule 32.2(c)). The petition should be filed by using or following the form accompanying this rule. If that form is not used or followed, the court shall return the petition to the petitioner to be amended to comply with the form. The petition shall be accompanied by two copies thereof. It shall also be accompanied by the filing fee prescribed by law or rule in civil cases in the circuit court unless the petitioner applies for and is given leave to prosecute the petition in forma pauperis. If the petitioner desires to prosecute the petition in forma pauperis, he or she shall file the “In Forma Pauperis Declaration” at the end of the form. In all such cases, the petition shall also be accompanied by a certificate of the warden or other appropriate officer of the institution in which the petitioner is confined, stating the amount of money or securities on deposit to the petitioner’s credit in any account in the institution for the previous twelve (12) months, which certificate may be considered by the court in acting upon the petitioner’s application for leave to proceed in forma pauperis. If the application to proceed in forma pauperis is granted, the filing fee shall be waived. If, upon final disposition of the petition, the court finds that all of the claims for relief are precluded for any of the reasons stated in Rule 32.2, it may assess the filing fee, or any portion thereof, and order the correctional institution having custody of the petitioner to withhold 50% of all moneys the institution then has on deposit for the petitioner, or receives in the future for the petitioner, until the filing fee that has been assessed by the court has been collected and paid in full. The order shall also direct the institution to forward to the clerk of the court in which the petition was filed, at least once every three months until that portion of the filing fee assessed by the court is paid in full, any such moneys collected from the petitioner.
Upon receipt of the petition and the filing fee, or an order granting leave to the petitioner to proceed in forma pauperis, the clerk shall file the petition and promptly send a copy to the district attorney (or, in the case of a petition filed in the municipal court, to the municipal prosecutor).
(b) SPECIFICITY. The petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.
(c) NOTIFICATION OF APPELLATE COURT. If an appeal of the petitioner’s conviction is pending, the clerk shall also promptly send a copy of the petition to the appropriate appellate court, noting in the record the date and manner by which it is sent.
(d) ASSIGNMENT OF JUDGE. The proceeding shall be assigned to the sentencing judge where possible, but for good cause the proceeding may be assigned or transferred to another judge. (Amended 3-22-02, eff. 8-1-02.)
Note from the reporter of decisions: The order amending Rule 32.6(a), effective August 1, 2002, is published in that volume of Alabama Reporter that contains Alabama cases from ___ So. 2d.

Rule 32.7. Additional pleadings; summary disposition; amendments
(a) PROSECUTOR’S RESPONSE. Within thirty (30) days after the service of the petition, or within the time otherwise specified by the court, the district attorney (or, in the case of a petition filed in the municipal court, the municipal prosecutor) shall file with the court and send to the petitioner or counsel for the petitioner, if any, a response, which may be supported by affidavits and a certified record or such portions thereof as are appropriate or material to the issues raised in the petition.
(b) AMENDMENT OF PLEADINGS. Amendments to pleadings may be permitted at any stage of the proceedings prior to the entry of judgment.
(c) APPOINTMENT OF COUNSEL. If the court does not summarily dismiss the petition, and if it appears that the petitioner is indigent or otherwise unable to obtain the assistance of counsel and desires the assistance of counsel, and it further appears that counsel is necessary to assert or protect the rights of the petitioner, the court shall appoint counsel.
(d) SUMMARY DISPOSITION. If the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings, the court may either dismiss the petition or grant leave to file an amended petition. Leave to amend shall be freely granted. Otherwise, the court shall direct that the proceedings continue and set a date for hearing.

Rule 32.8. Prehearing conference
In order to expedite the proceeding, the court may hold a prehearing conference, at which the petitioner need not be present if he or she is represented by counsel who is present. The conference may be by telephone. Whether held by telephone or in person, the conference shall be stenographically recorded or tape-recorded. At the prehearing conference, the court may order a showing by the petitioner of the materiality of the testimony expected to be presented by any witness subpoenaed by the petitioner, supported by affidavit where appropriate, and, upon petitioner’s failure to show the requisite materiality, may order that the subpoena for such witness not be issued or be quashed.

Rule 32.9. Evidentiary hearing
(a) HEARING. Unless the court dismisses the petition, the petitioner shall be entitled to an evidentiary hearing to determine disputed issues of material fact, with the right to subpoena material witnesses on his behalf. The court in its discretion may take evidence by affidavits, written interrogatories, or depositions, in lieu of an evidentiary hearing, in which event the presence of the petitioner is not required, or the court may take some evidence by such means and other evidence in an evidentiary hearing. When facilities are available, the court may in its discretion order that any evidentiary hearing be held at the place of petitioner’s confinement, giving at least seven (7) days’ notice to the officer in charge of the confinement facility. A verbatim record of the hearing shall be made.
(b) TESTIMONY OF PETITIONER. The petitioner may be called to testify at the hearing by the court or by either party.
(c) DECISION. If the court finds in favor of the petitioner, it shall enter an appropriate order with respect to the conviction, sentence, or detention; to any further proceedings, including a new trial; and to any other matters that may be necessary and proper.
(d) FINDINGS OF FACT. The court shall make specific findings of fact relating to each material issue of fact presented.

Rule 32.10. Appeal
(a) WHO MAY APPEAL; COURT TO WHICH APPEAL IS TAKEN. Any party may appeal the decision of a circuit court according to the procedures of the Alabama Rules of Appellate Procedure to the Court of Criminal Appeals upon taking a timely appeal as provided in Rule 4, Alabama Rules of Appellate Procedure. Any party may appeal a decision of a district or municipal court according to existing procedure.
(b) RELEASE OF PETITIONER. The petitioner shall not be released on bond pending appeal by either party. Release of the petitioner on bond pending a retrial after an order requiring retrial has become final, or after the time for filing an appeal from such an order has lapsed, shall be governed by the laws and rules governing release on bond pending an initial trial.
APPENDIX TO RULE 32
Form for Use in State Court for Petitions for Relief from Conviction or Sentence Imposed in State Court (Rule 32, Alabama Rules of Criminal Procedure)
[This form is not to be used to challenge loss of good time deductions from sentence, changes in custody classification, or jail or prison conditions.]
READ THESE INSTRUCTIONS CAREFULLY BEFORE YOU BEGIN PREPARING THE PETITION
(1) This petition must be legibly handwritten or typewritten, and must be signed by the petitioner or petitioner’s attorney under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered completely in the proper space on the form or on additional sheets submitted with the form. This form may be obtained from the librarian or other authorized officer of the corrections institution where you are confined.
(2) Additional pages are permitted. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum and not as part of this form.
(3) Only the judgments entered in a single trial may be challenged in a particular petition. If you seek to challenge judgments entered in different trials, either in the same county or in different counties, you must file separate petitions.
(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF IN THIS PETITION MAY RESULT IN YOUR BEING BARRED FROM PRESENTING IT IN A FUTURE PETITION.
(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH GROUND FOR RELIEF AND YOU MUST BE AS SPECIFIC AS POSSIBLE AS TO THE FACTS.
(6) Upon receipt of the appropriate fee, your petition will be filed if it is in proper order. If you do not know the amount of the fee, ask the librarian or other authorized officer of the corrections institution where you are confined to give you this information.
(7) If you do not have the necessary fee, you may request permission to proceed in forma pauperis, in which event you must complete the declaration at the end of this form, setting forth information establishing your inability to pay the fees and costs or give security therefor. Your declaration must include financial information relating to the twelve (12) months preceding the filing of this petition.
If you wish to proceed in forma pauperis, you must have an authorized officer at the corrections institution where you are confined complete the certificate at the end of your in forma pauperis declaration as to the amount of money and securities on deposit to your credit in any account in the institution.
(8) Complete all applicable items in the petition. When the petition is fully completed, the ORIGINAL AND TWO (2) COPIES must be mailed to the Clerk of the Court in which you were convicted.
(9) You must comply with these instructions in order to have your petition promptly considered.
Case number
ID YR NUMBER
(To be Completed by Court Clerk)
PETITION FOR RELIEF FROM CONVICTION OR SENTENCE
(Pursuant to Rule 32, Alabama Rules of Criminal Procedure)
IN THE __________________ COURT OF ___________________ ALABAMA
____________________ V. ______________________________________
Respondent
[Indicate either the "State" or, if filed in municipal court, the name of the "Municipality"]
Prison Number _____ Place of Confinement ____________________________
County of Conviction ____________________________
NOTICE: BEFORE COMPLETING THIS FORM, READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS.
1. Name and location (city and county) of court which entered the judgment of conviction or sentence under attack _____________________________________________________
2. Date of judgment of conviction ___________________________________________________________________________
3. Length of sentence _________________________________________________
4. Nature of offense involved (all counts) _________________________________________
5. What was your plea? (Check one)
(a) Guilty _____
(b) Not Guilty _____
(c) Not Guilty by reason of mental disease or detect _____
(d) Not Guilty and not guilty by reason of mental disease or defect _____
If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details:____________________________________________________________________________________________________________________
6. Kind of trial: (Check one)
(a) Jury _____ (b) Judge only _____
7. Did you testify at the trial?
Yes _____ No _____
8. Did you appeal from the judgment of conviction?
Yes _____ No ____
9. If you did appeal, answer the following:
(a) As to the state court to which you first appealed, give the following information:
(1) Name of court __________________________________________
(2) Result _________________________________________________
(3) Date of result _________________________________________
(b) If you appealed to any other court, then as to the second court to which you appealed, give the following information:
(1) Name of court __________________________________________
(2) Result _________________________________________________
(3) Date of result _________________________________________
(c) If you appealed to any other court, then as to the third court to which you appealed, give the following information:
(1) Name of court __________________________________________
(2) Result _________________________________________________
(3) Date of result _________________________________________
10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any court, state or federal?
Yes _____ No _____
11. If your answer to Question 10 was “yes,” then give the following information in regard to the first such petition, application, or motion you filed:
(a) (1) Name of court _______________________________________
(2) Nature of proceeding ____________________________________
(3) Grounds raised __________________________________________
(attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application, or motion?
Yes _____ No _____
(5) Result __________________________________________________
(6) Date of result __________________________________________
(b) As to any second petition, application, or motion, give the same information:
(1) Name of court ___________________________________________
(2) Nature of proceeding ____________________________________
(3) Grounds raised __________________________________________
(attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application, or motion?
Yes _____ No _____
(5) Result ___________________________________________________
(6) Date of result ___________________________________________
(c) As to any third petition, application, or motion, give the same information (attach additional sheets giving the same information for any subsequent petitions, applications, or motions):
(1) Name of court ____________________________________________
(2) Nature of proceeding _____________________________________
(3) Grounds raised ___________________________________________
(attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application, or motion?
Yes _____ No _____
(5) Result ___________________________________________________
(6) Date of result ___________________________________________
(d) Did you appeal to any appellate court the result of the action taken on any petition, application, or motion?
(1) First petition, etc. Yes _____ No _____
(2) Second petition, etc. Yes _____ No _____
(3) Third petition, etc. Yes _____ No _____
ATTACH ADDITIONAL SHEETS GWING THE SAME INFORMATION FOR ANY SUBSEQUENT PETITIONS, APPLICATIONS, OR MOTIONS.
(e) If you did not appeal when you lost on any petition, application, or motion, explain briefly why you did not: _________________________________________________________________________________________________________________________________
12. Specify every ground on which you claim that you are being held unlawfully, by placing a check mark on the appropriate line(s) below and providing the required information. Include all facts. If necessary, you may attach pages stating additional grounds and the facts supporting them.
GROUNDS OF PETITION
Listed below are the possible grounds for relief under Rule 32. Check the ground(s) that apply in your case, and follow the instruction under the ground(s):
___ A. The Constitution of the United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other relief.
For your information, the following is a list of the most frequently raised claims of constitutional violation:
(1) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea.
(2) Conviction obtained by use of coerced confession.
(3) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
(4) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
(5) Conviction obtained by a violation of the privilege against self-incrimination.
(6) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.
(7) Conviction obtained by a violation of the protection against double jeopardy.
(8) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.
(9) Denial of effective assistance of counsel.
This list is not a complete listing of all possible constitutional violations.
If you checked this ground of relief, attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each constitutional violation that you claim, whether or not it is one of the nine listed above, and include under it each and every fact you feel supports this claim. Be specific and give details.
___ B. The court was without jurisdiction to render the judgment or to impose the sentence.
If you checked this ground of relief, attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each and every fact you feel supports this claim. Be specific and give details.
___ C. The sentence imposed exceeds the maximum authorized by law, or is otherwise not authorized by law.
If you checked this ground of relief, attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each and every fact you feel supports this claim. Be specific and give details.
___ D. Petitioner is being held in custody after his sentence has expired.
If you checked this ground of relief; attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each and every fact you feel supports this claim. Be specific and give details.
___ E. Newly discovered material facts exist which require that the conviction or sentence be vacated by the court, because:
The facts relied upon were not known by petitioner or petitioner’s counsel at the time of trial or sentencing or in time to file a post.trial motion pursuant to Rule 24, or in time to be included in any previous collateral proceeding, and could not have been discovered by any of those times through the exercise of reasonable diligence; and
The facts are not merely cumulative to other facts that were known and
The facts do not merely amount to impeachment evidence; and
If the facts had been known at the time of trial or sentencing, the result would probably have been different; and
The facts establish that petitioner is innocent of the crime for which he was convicted or should not have received the sentence that he did.
If you checked this ground of relief, attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each and every fact you feel supports this claim. Be specific and give details.
___ F. The petitioner failed to appeal within the prescribed time and that failure was without fault on petitioner’s part.
If you checked this ground of relief, attach a separate sheet of paper with this ground listed at the top of the page. On this separate sheet of paper list each and every fact you feel supports this claim. Be specific and give details.
13. IMPORTANT NOTICE REGARDING ADDITIONAL PETITIONS. RULE 32.2(b) LIMITS YOU TO ONLY ONE PETITION IN MOST CIRCUMSTANCES. IT PROVIDES:
“Successive Petitions. The court shall not grant relief on a second or successive petition on the same or similar grounds on behalf of the same petitioner. A second or successive petition on different grounds shall be denied unless the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”
A. Other than an appeal to the Alabama Court of Criminal Appeals or the Alabama Supreme Court, have you filed in state court any petition attacking this conviction or sentence?
Yes _____ No _____
B. If you checked “Yes,” give the following information as to earlier petition attacking this conviction or sentence:
(a) Name of court ____________________________________________
(b) Result ___________________________________________________
(c) Date of result ___________________________________________
(attach additional sheets if necessary)
C. If you checked the “Yes” line in 13A, above, and this petition contains a different ground or grounds of relief from an earlier petition or petitions you filed, attach a separate sheet or sheets labelled: “EXPLANATION FOR NEW GROUND(S) OF RELIEF.”
On the separate sheet(s) explain why “good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and [why the] failure to entertain [this) petition will result in a miscarriage of justice."
14. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?
Yes _____ No _____
15. Give the name and address, if known, of each attorney who represented you at the following stages of the case that resulted in the judgment under attack:
(a) At preliminary hearing _____________________________________
(b) At arraignment and plea ____________________________________
(c) At trial ___________________________________________________
(d) At sentencing ______________________________________________
(e) On appeal __________________________________________________
(f) In any post-conviction proceeding __________________________
(g) On appeal from adverse ruling in a post-conviction proceeding ________________________________
16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time?
Yes _____ No _____
17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?
Yes _____ No _____
(a) If so, give name and location of court which imposed sentence to be served in the future: _______________________________________________________
(b) And give date and length of sentence to be served in the future: ________________________________________
(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?
Yes _____ No _____
18. What date is this petition being mailed?_________________________________________
Wherefore, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding.
PETITIONER'S VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY
I swear (or affirm) under penalty of perjury that the foregoing is true and correct. Executed on _______________
___________________________________Signature of Petitioner
SWORN TO AND SUBSCRIBED before me this the _____ day of _____,20____.
Notary Public
OR*
ATTORNEY'S VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY
I swear (or affirm) under penalty of perjury that, upon information and belief, the foregoing is true and correct. Executed on
______________
(Date)
___________________________________________Signature of Petitioner's Attorney
SWORN TO AND SUBSCRIBED before me this the day of _____ , 20__.
_________________
Notary Public
Name and address of attorney representing petitioner in this proceeding (if any)
______________________________________________
______________________________________________
"If petitioner is represented by counsel, Rule 32.6(a) permits either petitioner or counsel to verify the petition.
CASE NUMBER
ID YR NUMBER
(To be completed by Court Clerk)
IN FORMA PAUPERIS DECLARATION
________________________________
[Insert appropriate court]
(Petitioner)
v.
(Respondent(s))
DECLARATION IN SUPPORT OF REQUEST TO PROCEED IN FORMA PAUPERIS
I, __________ declare that I am the petitioner in the above entitled case; that in support of my motion to proceed without being required to prepay fees, costs, or give security therefor, I state that because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am entitled to relief.
1. Are you presently employed? Yes _____ No _____
a. If the answer is “yes,” state the amount of your salary or wages per month, and give the name and address of your employer. ______________________________________________________
b. If the answer is “no,” state the date of last employment and the amount of the salary and wages per month which you received. ____________________________________________________
2. Have you received within the past twelve months any money from any of the following sources?
a. Business, profession, or other form of self-employment?
Yes _____ No _____
b. Rent payments, interest, or dividends?
Yes _____ No _____
c. Pensions, annuities, or life insurance payments?
Yes _____ No _____
d. Gifts or inheritances?
Yes _____ No _____
e. Any other sources?
Yes _____ No _____
If the answer to any of the above is “yes,” describe each source of money and stats the amount received from each during the past twelve months.
3. Do you own cash, or do you have money in a checking or savings account?
Yes _____ No _____
(Include any funds in prison accounts.)
If the answer is “yes,” state the total value of the items owned. _______________________________________________________________________________________________________
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)?
Yes _____ No _____
If the answer is “yes,” describe the property and state its approximate value. __________________________________________________________________
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how much you contribute toward their support. ____________________________________________________________________________________
I declare (or certify verify or state) under penalty of perjury that the foregoing is true and correct. Executed on ____________________ (date)
_______________________________________
Signature of Petitioner
Certificate
I hereby certify that the petitioner herein has the sum of $ _____ on account to his credit at the __________________________ institution where he is confined. I further certify that petitioner likewise has the foregoing securities to his credit according to the records of said ______________________ institution:
_____________________________________________________________________________
_____________________________________________________________________________
__________________________________
DATE
___________________________________
AUTHORIZED OFFICER OF INSTITUTION

Using Rule 32 to set aside a guilty plea conviction in Alabama – Part 1 (williampfeifer.com)
Using Rule 32 to set aside a guilty plea in Alabama – Part 2 (williampfeifer.com)

Sexting & Youth: Recommended Article from the Center for Safe and Responsible Internet Use

William L. Pfeifer, Jr. — Sat, 13 Feb 2010 14:56:44 +0000

: Image via Wikipedia

Nancy Willard, director of the Center for Safe and Responsible Internet Use, has published an article on the Center’s website addressing the subject of Sexting and Youth: Achieving a Rational Approach. Among the issues addressed in the article is how children are now being prosecuted for distributing child pornography when they take and text a photo of themselves.

I wrote an article on this subject in September of 2009 entitled “Too many registered sex offenders make dangerous sex offenders difficult to track.” In that article, I discussed how laws are labeling so many people as sex offenders that it is now difficult for law enforcement to focus on those who are truly dangerous. For example, under current laws a teenage girl who sends a nude photo of herself to her boyfriend now becomes a convicted child pornographer, subject to the same sex offender registration and community notification as a dangerous offender like Phillip Garrido. While this was clearly not the intent in passing laws against child pornography, few legislators have the courage to attempt to modify the law out of fear that they will be labeled as soft on crime. As a result, the lives of impulsive children are ruined while true sex offenders get lost in the shuffle.

I am flattered that Ms. Willard chose to footnote my article in her new article on teen sexting, and I encourage all parents to read what she has written on the subject. Ms. Willard is an expert in this field. In addition to being the director of the Center for Safe and Responsible Internet Use, she has also published two related books: Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Aggression, Threats, and DistressCyberbullying and Cyberthreats: Responding to the Challenge of Online Social Cruelty, andCyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Learn To Use the Internet Safely and Responsibly Cyber-Safe Kids, Cyber-Savvy Teens, Helping Young People Use the Internet Safely and Responsibly.

Using Rule 32 to set aside a guilty plea in Alabama – Part 2

William L. Pfeifer, Jr. — Fri, 29 Jan 2010 18:51:52 +0000

This is the second in a series of articles on using Rule 32 of the Alabama Rules of Criminal Procedure to set aside a guilty plea. To read Part 1, click here.

A defendant who enters an involuntary or coerced guilty plea has the right to petition the court to set aside his plea and conviction under Rule 32 of the Alabama Rules of Criminal Procedure. This rule applies even if the defendant waived his right to challenge his conviction through appeal or through post-judgment motion. Waiving the right to file a Rule 32 petition as a condition of a plea bargain does not actually preclude the filing of a Rule 32 petition that challenges the voluntariness of the plea. In fact, the act of signing documents stating that the plea is voluntary does not, in itself, establish that a plea is voluntarily made. “[A] signed Ireland form is, alone, insufficient to establish the voluntariness of a plea.” Murray v. State, 922 So. 2d 961, 965, citing Waddle v. State, 784 So. 2d 367, 370 (Ala. Crim. App. 2000).“[A]n involuntary guilty plea will necessarily render the waiver involuntary and a waiver cannot be enforced if it is not voluntary.” Boglin v. State, 840 So. 2d 926, 930 (Ala. Crim. App. 2002).

One of the ways that a plea may be involuntary is through the failure of the trial lawyer to provide effective assistance of counsel. “[I]neffective assistance of counsel may, in some circumstances, render a guilty plea involuntary,” and a defendant’s plea agreement waiver of the right to seek post-conviction relief does not waive the right to argue that the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. Boglin at 930. Further, misrepresentations by a defendant’s counsel can make a defendant’s guilty plea involuntary. Minor v. State, 627 So. 2d 1071, 1072 (Ala. Crim. App. 1992); Elder v. State, 494 So. 2d 922, 924 (Ala. Crim. App. 1986).

To read more about setting aside a guilty plea due to ineffective assistance of counsel, see part 1 of this series. For more information, check back on our blog for future articles on this subject. If you need to consult an attorney about setting aside or vacating an Alabama conviction, please contact our office by phone or email to discuss the specifics of your case..

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel (calblogofappeal.com)
Are Too Many Defendants Pressured Into Pleading Guilty? (blogs.wsj.com)

First Circuit rejects asylum petition of Chinese woman alleging religious persecution

William L. Pfeifer, Jr. — Thu, 28 Jan 2010 05:47:53 +0000

Seal of the United States District Court for the First Circuit

The First Circuit Court of Appeals has rejected the appeal of a Chinese woman, Jin Weng, who fought deportation on the grounds of religious persecution. In the case of Jin Weng vs Eric H. Holder, Jr., Attorney General, the 1st Circuit reviewed an order of the Board of Immigration Appeals (BIA) which had affirmed the decision of an immigration judge to deny the Chinese immigrant asylum status under the Convention Against Torture.

It appears her asylum claim was rejected not because of a lack of evidence, but because the judge did not consider her testimony credible. The reason? When she was pulled from the trunk of a car attempting to cross the border from Mexico into California, she did not allege religious persecution to the officers who initially interrogated her. The allegation of religious persecution was not made until later, when she sought to fight deportation.

I’ve written an article summarizing the case on Examiner.com, which can be read here. To read the court’s ruling in its entirety, click here.

This case in some ways serves as another example of what Professor James Duane discussed in a video posted in a recent blog post on this site, where he advises people to never talk to the police. To see the article and video, click here.

William L. Pfeifer, Jr.

William L. Pfeifer, Jr.

Writing for About.com – The About.com Law GuideSite

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