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Banville v. State

Alabama Court of Criminal Appeals

March 17, 2017

John Joseph Banville
v.
State of Alabama

         Appeal from Morgan Circuit Court (CC-07-206.61)

          WELCH, Judge.

         John Joseph Banville appeals the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction relief. The petition challenged Banville's February 22, 2012, conviction for sexual abuse of a child less than 12 years old, a violation of § 13A-6-69.1, Ala. Code 1975, and his resulting sentence of 20 years' imprisonment.

         On February 26, 2013, Banville filed his first Rule 32 petition using the form found in the appendix to Rule 32, Ala. R. Crim. P., and paid a filing fee.[1] In that petition, Banville selected the following grounds provided on the form: 12(A)(9), denial of effective assistance of counsel; and 12(F), the failure of the petitioner to appeal within the prescribed time, which failure was without fault on petitioner's part.

         In the supplement to this first Rule 32 petition, Banville alleged that, after he told his trial attorney that he wanted to appeal, his trial attorney told him that he did not do appellate work. Thereafter, he hired another attorney as appellate counsel. That attorney filed a motion for a new trial that was denied on May 9, 2012. Banville further alleged that his appellate counsel was given notice of the dismissal by e-mail, but that Banville was never notified of the dismissal by him, and only discovered it himself while doing research on his case in the prison law library. Banville alleged that he immediately contacted his appellate attorney and was informed that the attorney did not represent him on the appeal, that no appeal had been filed, and that his time to appeal had expired. Banville alleged last that he received ineffective assistance of appellate counsel and was deprived of his right to appeal through no fault of his own.

         The circuit court granted relief on Banville's first petition, allowing an out-of-time appeal as provided for by Rule 32.1(f). Banville then appealed his conviction. On appeal, this Court affirmed Banville's conviction and sentence in an unpublished memorandum issued on May 22, 2015. See Banville v. State (No. CR-13-1346), __So. 3d __(Ala.Crim.App.2015) (table).

         Acting through counsel, Banville on April 18, 2016, filed his second petition using a form following the Rule 32 form found in the appendix to Rule 32, Ala. R. Crim. P., and paid a filing fee.

         In a supplement to the petition, Banville raised only claims alleging ineffective assistance of his trial counsel.

         Without waiting for a response by the State, the circuit court issued an order dismissing the petition:

         "ORDER

"This cause comes before the Court on the Petitioner's Petition for Relief from Conviction or Sentence pursuant to Rule 32, Ala. R. Crim. P. The Petitioner has pre-paid the required civil docketing fee and the Court has taken jurisdiction over the Petition. This is the Petitioner's second Rule 32 Petition attacking the judgment arising out of the underlying trial and making a claim of ineffective assistance of counsel, 'In no event can relief be granted on a claim of ineffective assistance of trial or appellate counsel raised in a successive petition.' Rule 32.2(d). Because this is a successive petition seeking relief on a claim of ineffective assistance of counsel, no relief is available. The Petition is DENIED. The Clerk is directed to give immediate notice to the District Attorney and Petitioner."

(C. 21.)

         Banville filed a motion to reconsider and attached a copy of the court's order in case number CC-07-206.60, in which the court had granted Banville's previous Rule 32 petition requesting relief under Rule 32.1(f), Ala. R. Crim. P., by allowing Banville to file an out-of-time appeal of his conviction.

         "MOTION TO RECONSIDER AND SET ASIDE ORDER

"On July 15, 2016, this Court entered an order dismissing Petitioner John Joseph Banville's Rule 32 petition. That order was based upon a premise that the petition was a successive petition alleging ineffective assistance of counsel, and, thus, barred by Rule 32.2(d), Ala.R.Crim.P. That premise is faulty. While the petition is a ...

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