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THE STATE POST-CONVICTION APPEAL or “RULE 32 APPEAL”

    A defendant sentenced to death is also entitled to seek an appeal under Rule 32 of the Alabama Rules of Criminal Procedure.

Under Rule 32, the defendant may not dispute the sentence or conviction directly, but may dispute some important but collateral issues, such as whether the trial counsel put on an effective defense.

You will often hear lawyers refer to this additional appeal as a “state post-conviction appeal,” a “Rule 32 appeal,” or an “error coram nobis” appeal.

An important limitation of this state post-conviction appeal is that issues raised at trial or during the direct appeal, or which could have been raised at trial or on direct appeal, are barred from review at this point and cannot be considered. A second or successive state post-conviction appeal by the same defendant under Rule 32 is also barred and cannot be considered.

Most of the issues commonly raised at the post-conviction appeal stage involve the allegations of ineffective assistance of the defense lawyers at the trial and direct appeal stage. The Rule 32 appeal starts with the defendant, now called “thepetitioner,” submitting a petition for relief to the circuit court where the originaltrial was held.

• The Capital Litigation Division and the District Attorney’s Office will represent the State, writing a response to the petitioner’s request for relief. • Often the circuit court judge will pare down the issues raised by the petitioner to those not barred from review at this stage, and then hold an evidentiary hearing on those issues.

• This hearing is open to the public and the petitioner will attend this hearing.

• After the hearing, the lawyers will submit briefs for the trial judge to consider, and the judge will issue a written order, either denying the petition for relief or granting it. The judge, in granting relief, could order a new trial, a new sentence hearing, or both.

• If the trial judge denies the petition, that decision may be appealed to the Alabama Court of Criminal Appeals. Like the direct appeal, the “appellant” will submit a brief to the court, and the Capital Litigation Division will submit a brief in response. The Court of Criminal Appeals may order oral arguments, but usually renders an opinion without them. Appeals to the Court of Criminal Appeals are not granted automatically, as they were on direct appeal.

• The appellant may appeal the decision to the Alabama Supreme Court. If the Alabama Supreme Court decides to hear the case (which is not automatic),the Court may uphold the decision of the Court of Criminal Appeals. The appellant may then (as in direct appeal) petition the United States Supreme Court for review on a writ of certiorari. As in direct appeal, the majority of the petitions for review by the United States Supreme Court are denied. If denied review by the United States Supreme Court, the state postconviction appeal is completed.
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