478 So. 2d 322 | Ala. Crim. App. | 1985
William James Lowe was originally tried for and convicted of murder and was sentenced to life imprisonment without parole, pursuant to the Habitual Felony Offender Act. Lowe's indictment arose out of an *323 incident in which he ran over a motorcycle on which two persons were riding while Lowe was driving an automobile. This court unanimously, without opinion, affirmed his conviction on October 4, 1983. The Alabama Supreme Court denied Lowe's petition for writ of certiorari without opinion on January 13, 1984.
Lowe now appeals from the denial of his petition for writ of error coram nobis in which he alleged the ineffective assistance of trial counsel. Following a hearing on April 4, 1985, on said petition, the trial court decided that appellant was not denied the effective assistance of counsel. A copy of the trial court's order is attached. (R. 36).
Petitioner argues that State's witness McDonald presented testimony at trial which was in direct conflict with petitioner's testimony. The weight to be given such testimony was for the jury. He argues that one Officer Howard Rogers could have offered testimony which would have been in direct conflict with witness Peggy Henderson's testimony at trial and that trial counsel failed to exercise reasonable diligence in discovering such information.
As the prosecution correctly points out in their motion to deny and dismiss the petition, coram nobis does not lie to relitigate issues fully adjudicated on appeal; nor will it enable a petitioner to question the merits of his case. Goodmanv. State,
Petitioner further argues that the Habitual Felony Offender Act is unconstitutional in that it was applied to him in an expost facto fashion. This court has held that the law is well settled on the issue of ex post facto application of the Act. Numerous cases from this court have consistently held that it is not. Chambers v. State,
Although a transcript of the hearing on the petition for writ of error coram nobis was not included in the record on appeal, we do have before us the transcript of the original trial and the hearing on the *324 motion for new trial. We have reviewed these proceedings bearing in mind petitioner's allegations of ineffective assistance of counsel. We have further reviewed the evidence contained in petitioner's brief on appeal which may have a bearing on these issues. Having done this, it is apparent that petitioner was represented at trial by competent, effective, and zealous counsel.
The petitioner has simply failed to carry the heavy burden of proof imposed on him to show that trial counsel was ineffective in his representation. Strickland v. Washington,
After reviewing all issues we are of the opinion that the trial court correctly denied the coram nobis petition at issue. The judgment is, therefore, affirmed.
AFFIRMED.
All the Judges concur. *325
And upon consideration it is held that the said Motion is Not well taken. It is therefore ordered, adjudged and decreed by the Court, that said Motion be and the same is hereby Denied. ______________________________________________________________
______________________________________________________________
Done and ordered this the 29 day of May, 1985.
________________________________ Circuit Judge 19th Judicial Circuit of Alabama
copies to WHITE. . . . Court File GREEN. . . . Plaintiff's Atty. CANARY . . . Defendant's Atty. *326