Opinion
No. CR-02-0977.
Decided November 23, 2005.
Appeal from Colbert Circuit Court (CC-94-781.60).
On Application for Rehearing
The appellant, Alonzo L. Burgess, appealed the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.App.P., attacking his capital-murder conviction and sentence to death. We affirmed the circuit court's denial of Burgess's Rule 32 petition. See Burgess v. State, [Ms. CR-02-0977, September 30, 2005] ___ So.2d ___ (Ala.Crim.App. 2005). In resolving three issues in our opinion, part I.F., I.G., and I.H., we held that because this Court on direct appeal had addressed the substantive issue and found no plain error Burgess could show no prejudice under Strickland v. Washington, 466 U.S. 668 (1984). We noted in footnote 7 that "The Alabama Supreme Court has not addressed whether a finding of plain error precludes a finding of prejudice under Strickland." ___ So.2d at ___ n. 7.
On the same date that we issued our decision, the Alabama Supreme Court released Ex parte Taylor, [Ms. 1040186, September 30, 2005] ___ So.2d ___ (Ala. 2005). The Supreme Court in Taylor resolved the question whether a finding of no plain error precludes a finding of prejudice. The Supreme Court stated:
"Although it may be the rare case in which the application of the plain-error test and the prejudice prong of the Strickland test will result in different outcomes, a determination on direct appeal that there has been no plain error does not automatically foreclose a determination of the existence of the prejudice required under Strickland to sustain a claim of ineffective assistance of counsel. In determining whether to grant a Rule 32 petitioner relief on an ineffective-assistance claim, a court must examine both the plain-error and prejudice standards of review."
___ So.2d at ___.
In light of the Supreme Court's decision in Taylor, we have reexamined the issues in parts I.F., I.G., and I.H. of our opinion on original submission. In part I.F. of that opinion we addressed Burgess's claim that counsel was ineffective for failing to object to victim-impact evidence that was introduced before sentencing. Burgess presented no evidence at the Rule 32 hearing in support of this claim. As we stated in Payne v. State, 791 So.2d 383, 399 (Ala.Crim.App. 1999) (opinion on return to remand): "Because it appears that [the appellant] did not present evidence at the evidentiary hearing with regard to [certain] claims . . ., we conclude that he has abandoned these claims and we will not review them."
In part I.G. of our opinion we addressed Burgess's claim that his counsel was ineffective for failing to object to allegedly inflammatory photographs. Burgess failed to present evidence in support of this claim at the Rule 32 hearing; therefore, he abandoned this claim.
Last, in part I.H. of our opinion we addressed Burgess's claim that his counsel failed to object to certain pretrial proceedings that were held in his absence. Burgess did not present any evidence in support of this claim at the evidentiary hearing; therefore, he abandoned this claim.
After carefully reviewing the Supreme Court's decision in Taylor and the issues raised in this case, we conclude that our original decision affirming the denial of Burgess's Rule 32 petition was correct.
APPLICATION FOR REHEARING GRANTED; AFFIRMED.
McMillan, P.J., and Cobb, Baschab, and Shaw, JJ., concur.