Roberts v. State
141 So. 3d 1139
Ala. Crim. App.2013Background
- Barbara Ann Roberts was convicted of capital murder and first-degree robbery and sentenced to life without parole; this Court previously affirmed her conviction.
- Roberts filed a Rule 32 petition alleging, among other claims, ineffective assistance of appellate counsel — specifically that appellate counsel (Cochran‑Morgan) failed to raise a jury‑instruction/intent issue on appeal.
- Roberts requested appointed counsel other than Cochran‑Morgan for the Rule 32 proceedings; the circuit court nonetheless appointed Cochran‑Morgan, who had handled posttrial and the direct appeal.
- Cochran‑Morgan, while representing Roberts in the Rule 32 hearing, advanced the claim that she (Cochran‑Morgan) had been ineffective as appellate counsel; because of this, she did not testify in support of that claim.
- The circuit court denied the Rule 32 petition on the merits; Roberts appealed while again represented by Cochran‑Morgan, who continued to assert her own ineffectiveness.
- The Court reversed and remanded, holding that appointing counsel to assert her own ineffectiveness created an impermissible conflict that precluded proper presentation of the claim and required reconsideration of Roberts’s request for counsel and an opportunity to amend the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel who represented appellant on appeal may be appointed in postconviction proceedings to assert her own ineffective‑assistance | Roberts: appointment creates conflict; counsel cannot fairly litigate her own ineffective performance | State: appointment was permissible; issue was irregular but petitioner bore burden to prove ineffectiveness | Court: appointment improper; conflict prevented counsel from testifying and impaired presentation of claim — reverse and remand |
| Whether a defendant’s acquiescence to conflicted counsel constitutes valid waiver | Roberts: any agreement was coerced by lack of alternatives and not an effective waiver | State/court below: Roberts agreed to let Cochran‑Morgan continue; waiver implied | Court: questioned efficacy of waiver under Rule 1.7 and comments; did not accept waiver as curing conflict |
| Whether counsel asserting own ineffectiveness could provide testimonial evidence | Roberts: counsel unable to testify if representing client on same claim | State: noted procedural irregularity but emphasized petitioner’s burden of proof | Court: Rule 3.7 bars advocate‑witness role; counsel’s dual role precluded necessary testimony and was improper |
| Whether the conflict claim is forfeitable or must be considered sua sponte | State/dissent: conflict is nonjurisdictional and waivable, not preserved on appeal | Roberts/majority: practical bars to litigating issue later; unique facts justify sua sponte review | Court: exercised sua sponte review and reversed; dissent argued the issue was not preserved |
Key Cases Cited
- Roberts v. State, 62 So.3d 1071 (Ala. Crim. App. 2010) (prior appeal affirming convictions)
- Donald v. State, 456 So.2d 142 (Ala. Crim. App. 1984) (no constitutional right to counsel in coram nobis; ineffective‑assistance claims of postconviction counsel treated differently)
- A.G. v. State, 989 So.2d 1167 (Ala. Crim. App. 2007) (noting that appellate counsel cannot be expected to allege his own ineffectiveness)
- Murphy v. State, 863 P.2d 301 (Colo. 1993) (holding appointment of same counsel who represented defendant at trial to litigate postconviction ineffective‑assistance claims created impermissible conflict)
- United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (recognizing inherent conflict where trial counsel forced to prove his own ineffectiveness)
- Garland v. State, 283 Ga. 201 (Ga. 2008) (stating trial counsel cannot reasonably be expected to argue his own ineffectiveness)