Asked in Criminal Law and Federal Crimes for Alabama

Q: the best way to file a successive rule 32 petition

capital offense , in collateral stage , federal level , all claims denied

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1 Lawyer Answer
Samuel G McKerall
Samuel G McKerall
  • Criminal Law Lawyer
  • Gulf Shores, AL

A: This question isn't real clear. Taking an educated guess, it appears that you may mean that a person was convicted of a capital offense, and that the defendant has exhausted all levels of relief in federal court. You ask about a "successive Rule 32 petition". If by "successive", you mean that there has already been a Rule 32 petition in state court, and that Rule 32.2(b) governs, and it provides:


If a petitioner has previously filed a petition that challenges any judgment, all subsequent petitions by that petitioner challenging any judgment arising out of that same trial or guilty-plea proceeding shall be treated as successive petitions under this rule. The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not

known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.

What this means is that the defendant only gets one bite at the Rule 32 apple unless he or she can show that the trial court was without jurisdiction in the case (which is highly unlikely) or he or she has new evidence that was not considered in the original petition and can further show that he or she was unaware of the new evidence at the time of the first petition and further show that he or she could not through reasonable diligence have discovered the new evidence at the time the first petition was heard, and further show that the failure to allow the petition will result in a miscarriage of justice. This last element probably means that the new evidence must constitute proof of actual innocence.

The format for a Rule 32 petition is prescribed in the Appendix to Rule 32, which appears after all the rules and can be found here:

Hope this helps.

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