640 So. 2d 21 | Ala. Crim. App. | 1994
We remanded this case to the trial court with instructions that it order the state to file an appropriate response to Michael Russ's petition for post-conviction relief and to take whatever further action it deemed appropriate.
The trial court found that Russ's claims that the state failed to disclose evidence favorable to the defense, that he was denied effective assistance of counsel, that the trial court was without jurisdiction to render a judgment or to impose sentence, and that he was entitled to a new trial because of newly discovered evidence were not supported by allegations of specific facts, and thus failed to state claims upon which relief could be granted. The record supports the findings of the trial court.
Regarding Russ's claims that the trial court erroneously instructed the jury on reasonable doubt, that the state failed to prove his identity, that the state failed to properly prove his prior felony convictions, and that the grand jury that indicted him was unconstitutionally *22 selected and impaneled, the trial court correctly found that these claims were precluded from review because they could have been raised at trial or on direct appeal and were not. Ala.R.Cr.P. 32.2(a)(3) and (5).
Regarding Russ's claim that the state failed to give sufficient notice of its intent to invoke the Habitual Felony Offender Act, the trial court correctly found, from the record, that that claim was without merit.
The trial court's finding that Russ's claim that the state failed to prove a prima facie case of attempted murder was precluded from review because it was a claim that was raised at trial and on direct appeal and decided adversely to Russ is also correct. Rule 32.2(a)(3) and (5).
For the above reasons, the judgment of the trial court denying Russ's post-conviction petition is due to be affirmed.
AFFIRMED.
All Judges concur.