from Morgan Circuit Court (CC-07-206.61)
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'
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. 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
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.
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sentence in an unpublished memorandum issued on May 22, 2015.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
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.
supplement to the petition, Banville raised only claims
alleging ineffective assistance of his trial counsel.
waiting for a response by the State, the circuit court issued
an order dismissing the petition:
"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."
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
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