[Copyrighted Material Omitted]
This Opinion is subject to formal revision before publication in the advanced sheet of the Southern Reporter.
Appeal from Jefferson Circuit Court. (CC-85-3363.10 and CC-85-3364.10).
KELLUM, Judge. Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.
After Remand by the United States Supreme Court
In 1986, Anthony Ray Hinton was convicted of two counts of capital murder and was sentenced to death. This Court and the Alabama Supreme Court affirmed Hinton's convictions and sentence on appeal. Hinton v. State, 548 So.2d 547 (Ala.Crim.App. 1988) (" Hinton I" ), aff'd, 548 So.2d 562 (Ala. 1989) (" Hinton II" ).
In 1990, Hinton filed a Rule 32, Ala. R. Crim. P., petition for postconviction relief, in which he alleged, among other things, that his trial counsel had been ineffective for not hiring a qualified firearms-identification expert for his defense. Hinton argued that his trial counsel was unaware that § 15-12-21(d), Ala. Code 1975, which had previously limited funding for experts to $500 per case, had been amended some two years before Hinton's trial to remove the cap on funding for experts and that counsel had failed to seek " additional funds when it became obvious that the individual willing to examine the evidence in the case for the $1000 allotted by the court was incompetent and unqualified." (C. 419.) In 2005, the circuit court denied Hinton's petition after an evidentiary hearing, finding that Hinton had not been prejudiced by trial counsel's performance because counsel had hired Andrew Payne to examine the evidence and to testify in his defense and Payne's testimony, if believed, strongly supported the inference that Hinton was not guilty of the capital murders.
This Court affirmed the denial of Hinton's Rule 32 petition on appeal. Hinton v. State, [Ms. CR-04-0940, April 28, 2006] 172 So.3d 249, (Ala.Crim.App.
2006) (" Hinton III" ). Specifically, this Court adopted the circuit court's
findings of fact and held that, even if counsel's failure to know that the
statutory cap on expert funds had been lifted did constitute deficient
performance, Hinton had failed to prove that he had been prejudiced by counsel's
hiring Andrew Payne, whose testimony at trial established his expertise and was
even more favorable to Hinton than the testimony of the experts who testified at
the Rule 32 hearing. Hinton III, __ So.3d at __.
On certiorari review, the Alabama Supreme Court reversed this Court's judgment, quoting then Judge Shaw's dissent for the holding that the " 'dispositive issue [was] whether Payne was a ...