author: PITTMAN, Judge.

text:
    ALABAMA STATE PERSONNEL BOARD v. Joseph DUEITT.
    2080899.
    Court of Civil Appeals of Alabama.
    May 7, 2010.

      Tara S. Knee, deputy legal counsel, Alabama State Personnel Board, for appellant.
    C. Robert Montgomery, Chatom, for ap-pellee.
   PITTMAN, Judge.

The Alabama State Personnel Board (“the Board”) appeals from a judgment of the Washington Circuit Court that reversed an order of the Board that had upheld the dismissal of Joseph Dueitt, an employee of the Alabama Department of Transportation (“DOT”). We reverse the circuit court’s judgment.

The record shows that Dueitt was hired by DOT in 2004. On a Sunday evening in February 2006 Dueitt was driving a DOT vehicle from his primary residence to his secondary residence when he was involved in a single-vehicle wreck that resulted in the total loss of the vehicle. An Alabama State Trooper was dispatched to the scene, arrived 90 minutes later, and began investigating. After having detected an odor of alcohol from both inside the vehicle Dueitt had been driving and Dueitt himself, the trooper administered three handheld-breathalyzer tests that yielded blood-alcohol readings varying from 0.11% to 0.15%, or in excess of the presumptive legal limit of .08% under Ala.Code 1975, § 32-5A-191. The trooper then transported Dueitt to the Washington County jail, where a further breath test showed Dueitt’s blood-alcohol level to be 0.12%. The trooper’s incident report indicated that Dueitt had been driving under the influence of alcohol (“DUI”) and had exceeded the posted speed limit while approaching a curve.

DOT soon thereafter advised Dueitt that he was the subject of a pre-termination hearing scheduled for March 2006. After the hearing, DOT terminated Dueitt’s employment in May 2006. DOT stated, in various items of correspondence with Dueitt and in filings with the circuit court, that it had terminated Dueitt’s employment because he had driven a state vehicle without authorization, had driven that vehicle while intoxicated, and had been involved in a wreck that had resulted in the total loss of that vehicle.

Dueitt appealed from the termination order to the Board, who assigned the case to an administrative law judge (“ALJ”). The ALJ held a hearing and recommended to the Board that DOT’s termination order be upheld. The Board accepted the ALJ’s recommendation and upheld the dismissal. Dueitt then appealed to the circuit court. That court, in its final judgment, determined that the Board’s decision was “not supported by substantial evidence” and ordered that DOT reinstate Dueitt with backpay dating to May 2006. The Board then appealed to this court.

The standard of appellate review to be applied by the circuit courts and by this court in reviewing the decisions of administrative agencies is the same. See Alabama Dep’t of Youth Servs. v. State Pers. Bd., 7 So.3d 380, 384 (Ala.Civ.App.2008). That prevailing standard is deferential toward the decision of the agency:

“Judicial review of an agency’s administrative decision is limited to determining whether the decision is supported by substantial evidence, whether the agency’s actions were reasonable, and whether its actions were within its statutory and constitutional powers.... Judicial review is also limited by the presumption of correctness which attaches to a decision by an administrative agency.”

Alabama Medicaid Agency v. Peoples, 549 So.2d 504, 506 (Ala.Civ.App.1989). Also, the Alabama Administrative Procedure Act provides that,

“[e]xcept where judicial review is by trial de novo, the agency order shall be taken as prima facie just and reasonable and the court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact, except where otherwise authorized by statute.”

Ala.Code 1975, § 41-22-20(k). “Neither this court nor the trial court may substitute its judgment for that of the administrative agency.” Alabama Renal Stone Inst., Inc. v. Alabama Statewide Health Coordinating Council, 628 So.2d 821, 823 (Ala.Civ.App.1993). “This holds true even in cases where the testimony is generalized, the evidence is meager, and reasonable minds might differ as to the correct result.” Health Care Auth. of Huntsville v. State Health Planning Agency, 549 So.2d 973, 975 (Ala.Civ.App.1989).

Further, this court does not apply a presumption of correctness to a circuit court’s judgment entered on review of an administrative agency’s decision “because the circuit court is in no better position to review an agency’s decision than this court.” Alabama Bd. of Nursing v. Peterson, 976 So.2d 1028, 1033 (Ala.Civ.App.2007). Finally, in order for the Board’s decision to uphold the termination of an employee to warrant affirmance, that decision would have to be supported by “substantial evidence,” which in an administrative context is “relevant evidence that a reasonable mind would view as sufficient to support the determination.” Ex parte Personnel Bd. of Jefferson County, 648 So.2d 593, 594 (Ala.Civ.App.1994).

The Board contends on appeal that the circuit court impermissibly reweighed the evidence and substituted its judgment regarding a question of fact for the judgment of the Board. We agree.

Dueitt testified before the ALJ that he had consumed no alcohol on the day of the wreck; that a deer had hit the windshield of the vehicle he was operating, causing the wreck; and that he could remember nothing that had transpired between the moment of the wreck and a point in time a few days later.

A witness called by Dueitt testified via deposition that he had been driving along the road where Dueitt’s vehicle had crashed and had seen Dueitt leaning against the wrecked vehicle. The witness testified that he had walked Dueitt to the witness’s vehicle, had placed Dueitt in the passenger’s seat, and had offered him a drink from a bottle of whiskey “to calm his nerves.” The witness testified that Dueitt had then “reluctantly” took the bottle and took two “big ol’ shots” before returning the bottle to the witness. The witness testified that near the scene of the wreck had lain the carcass of a 75- to 100-pound doe that had just been killed, that there was fur from the doe stuck in the windshield of the vehicle Dueitt had been driving, and that Dueitt had told the witness to take the doe with him. The witness testified that he then had taken the doe home, processed it at a deer-processing plant that was in his back yard, and eaten it. Finally, the witness testified that he had not known Dueitt before the accident but had become employed by Dueitt before testifying at the deposition.

Among the salient points brought out by the trooper’s testimony before the ALJ were that it had taken him 90 minutes to reach the scene of the wreck because he was assigned to cover a large area; that additional time could have transpired between the time of the wreck and the time state troopers were first notified of the wreck; and that he had smelled alcohol not only on Dueitt’s body, but also in the interior of the vehicle Dueitt had been operating. The trooper also testified that upon Dueitt’s report that he had hit a deer, the trooper had inspected the vehicle for signs of animal fur or blood, but had found none, and that he had found no animal blood or remains near the scene that evening or the next day. The trooper stated further that Dueitt had initially told the trooper that he had consumed no alcohol, but later at the scene of the wreck had admitted that he had consumed a container of beer and that someone who had driven by the scene had given him an alcoholic drink, and that the DUI citation the trooper had issued had been dismissed upon Dueitt’s voluntary completion of a DUI class.

Dueitt testified before the ALJ that he could remember little or nothing that had taken place between the time of the wreck and the following Wednesday morning, except that he believed he remembered that he had looked for his cellular telephone near the scene immediately after the wreck. He testified that, on the Monday following the wreck, he had been taken to a hospital and had undergone computerized-tomography scans and other tests and that he had hired an attorney, but that at the time of trial he still could not remember, or could not quite remember, details of those events, and that, when he had approached the same attorney on the following Wednesday, Dueitt had been surprised to learn that he had already hired that attorney. Dueitt never attempted to offer into evidence any medical records showing any medical treatment for any injuries related to the wreck.

The ALJ’s recommendation to the Board stated specifically that Dueitt’s testimony lacked credibility and that his demeanor had added to his lack of credibility. The ALJ further noted two inconsistencies between Dueitt’s testimony before the ALJ and in the March pre-termination hearing — at the hearing before the ALJ, Dueitt testified that he was already 35 to 40 miles into his journey at dusk, while at his pre-termination hearing before DOT, he had testified that he began his journey between 7:00 and 9:00 p.m.; similarly, at the DOT hearing, Dueitt testified that his memory had recovered on Tuesday afternoon, while before the ALJ he testified that it was Wednesday morning when his memory had returned. The ALJ also opined in her recommendation that the testimony of the witness called by Dueitt was not credible and that the witness had an interest in testifying in Dueitt’s behalf because the witness had entered Dueitt’s employ at the time he testified by deposition. After quoting from a particular administrative regulation that authorizes termination of the employment of an employee found to have committed a “use of alcohol” violation, see Aa. Admin. Code (Personnel Board), r. 670-x-19.01(l)(b)(7), the ALJ recommended that Dueitt’s dismissal be upheld because, she said, DOT had met its burden of proof.

The circuit court stated as its only ground for reversing the Board’s decision that the decision was “not supported by substantial evidence.” Dueitt did not deny that his blood-alcohol level was beyond the presumptive legal limit at the time he was examined by the state trooper, nor did he deny that the vehicle was a total loss as a result of his wreck, so the circuit court must have believed that the blood-alcohol level indicated by the trooper’s tests did not constitute substantial evidence showing that Dueitt had been intoxicated at the time of the accident.

The Aabama Supreme Court addressed precisely this sort of question in Bickerstaff v. State, 516 So.2d 800, 801 (Aa.1987), stating that when a “substantial” amount of time passes between the time of an alleged offense and a witness’s observation of the defendant, and “it is shown” that the defendant had access to alcoholic beverages in the interim, whether the defendant was intoxicated at the time of the offense is not a question of law, but a question of fact for the fact-finder to decide. The Aabama Supreme Court then quoted approvingly from Justice Maddox’s dissent in Elmore v. State, 348 So.2d 269 (Aa.1977), in which he stated that “[a] driver’s drunken condition after an automobile accident can be a fact from which the [fact-finder] would infer that he was driving the automobile while in that condition.” 848 So.2d at 271 (Maddox, J., dissenting).

It is, therefore, a question of fact whether Dueitt was intoxicated at the time of his wreck. Resolution of questions of fact in this case were the province of the ALJ, acting on behalf of the Board, rather than of the circuit court. It has long been the rule that when a fact-finder — in this case, the ALJ — determines that a witness has been willfully untruthful, that court may disregard all of that witness’s testimony or any part thereof. Cochran v. Cochran, 5 So.3d 1220, 1233-34 (Aa.2008). In addition to Dueitt’s testimony and demean- or being found not to be credible by the ALJ, the trooper’s testimony, which the ALJ expressly deemed credible, was that he had smelled alcohol inside the vehicle operated by Dueitt as well as on Dueitt himself. We note further that, under Bickerstaff, 516 So.2d at 801, the fact-finder is permitted to infer intoxication of a party at the time of an event, even when “it is shown” that the party had access to alcohol between the time of the event and the time of a subsequent citation (which would characterize this case only if it is assumed that Dueitt’s witness’s testimony was credible).

In light of the facts and authorities discussed above, we conclude that relevant evidence that a reasonable mind would view as sufficient supports the Board’s de-cisión to uphold DOT’S termination of Dueitt’s employment and that the circuit court impermissibly substituted its judgment on a question of fact for the judgment of the Board. We reverse the circuit court’s judgment and remand the cause with instructions for the circuit court to enter judgment affirming the decision of the Board.

REVERSED AND REMANDED WITH INSTRUCTIONS.

THOMPSON, P.J., and BRYAN, ■ THOMAS, and MOORE, JJ., concur.

      . The Board also contends that the circuit court erred in ordering backpay. Because we reverse the circuit court's order to reinstate Dueitt to his employment with DOT, we pre-termit any discussion of the circuit court's authority to order backpay.

      . As will be shown below, Dueitt identified that point in time differently at different points in the administrative record.

      . The trooper’s incident report, which was prepared just after the time of the wreck, indicated that Dueitt had admitted to having had two containers of beer.

      . Because the Board is authorized by that regulation to approve the dismissal of an employee over a "use of alcohol” violation, we pretermit discussion of the contested question whether Dueitt was authorized to drive the DOT vehicle between his primary and secondary residences.


source: Caselaw Access Project

author: MOORE, Judge.

license: Public Domain

text:
    Lorenzo WATKINS v. Billy MITCHEM et al.
    2090005.
    Court of Civil Appeals of Alabama.
    May 7, 2010.

      Lorenzo Watkins, pro se.
    Troy King, atty. gen., and Todd E. Hughes, asst. atty. gen., for appellees.
   MOORE, Judge.

Lorenzo Watkins appeals from a judgment entered in favor of defendants Warden Billy Mitchem; Captain Lloyd Wallace; Lieutenant Darwin Halbrooks; and the Alabama Department of Corrections (hereinafter sometimes collectively referred to as “the defendants”). We affirm in part and reverse in part.

Procedural Background

On June 19, 2009, Watkins, who was an inmate in protective custody at the Limestone Correctional Facility at that time, filed a complaint in the Montgomery Circuit Court, alleging that the defendants’ acts and omissions had violated his constitutional rights. Watkins sought injunctive relief as well as monetary damages against the defendants; he also requested a jury trial.

On June 30, 2009, the trial court entered an order granting Watkins permission to file his complaint without immediate payment of a filing fee and ordering the Department of Corrections to withhold a designated portion of the funds in Watkins’s prison money account until he had paid the filing fee. The trial court also ordered the defendants to answer Watkins’s complaint within 30 days and stated: “This matter is ORDERED set on August 25, 2009.”

On August 24, 2009, the defendants collectively filed an answer to Watkins’s complaint, generally denying that Watkins had been deprived of his constitutional rights as alleged in the complaint. The defendants asserted, among other things, that they were entitled to sovereign immunity and qualified immunity and that the complaint failed to state a claim upon which relief could be granted. The defendants also moved for a judgment as a matter of law.

On August 25, 2009, the day after the defendants filed their answer, the trial court conducted the hearing that had been previously set. The defendants, through counsel, appeared at the hearing; Watkins, however, was not present.

On September 11, 2009, the trial court ordered the matter reset for Monday, October 5, 2009; that order was electronically entered into the State Judicial Information System on September 14, 2009. However, also on September 14, 2009, the trial court entered a judgment, stating:

“THIS CAUSE coming before the Court for trial on the Plaintiffs Complaint and Defendants’ Answer, and after reviewing same, the Court finds that judgment in this cause is due to be entered in favor of the Defendants. Therefore, it is hereby ORDERED, ADJUDGED and DECREED that final judgment be entered in this cause against the Plaintiff and in favor of the Defendants, and it is further ordered that this case be DISMISSED, with prejudice.
“Costs, in the amount of $201.00, are taxed against the Plaintiff in the amount of twenty-five (25%) per available sums of his [prison money] account.”

On September 25, 2009, Watkins filed his notice of appeal.

The Pleadings

Reading Watkins’s complaint in the light most favorable to him, see Harden v. Ritter, 710 So.2d 1254, 1255-56 (Ala.Civ.App.1997), Watkins alleges that, in November or December 2008, he received a “behavioral citation” for alleged misconduct. Watkins, who asserted that he had formerly served as a corrections officer, alleged that, pursuant to prison policy, a behavioral citation is given for less serious disciplinary infractions and carries no right to due process, while a “disciplinary citation” is given for more serious infractions and entitles an inmate to due process. Watkins further alleged that, despite having received a less serious behavioral citation, he was punished by placement in administrative segregation for six months and by the removal of his privileges. Watkins claimed that he was denied due process to which he was entitled before receiving a punishment of that severity. Watkins also alleged that he notified Lieutenant Hal-brooks and Captain Wallace of those violations but that they failed to take any corrective action.

Watkins also alleged that Warden Mit-chem had adopted a policy of documenting all alleged infractions by inmates in protective custody as “behavioral citations,” to which no due-process rights attached, regardless of the punishment imposed for such infractions. Watkins alleged that the defendants’ acts and omissions had deprived him of due process and equal protection of the law, his right to be free of cruel and unusual punishment, and his right to offer testimony on his own behalf.

Watkins attached to his complaint documents from the Limestone Correctional Facility that tended to support his allegations regarding the imposition of extended administrative segregation as punishment for inmates in protective custody charged with a behavioral citation. For example, Watkins attached to his complaint a copy of the December 2008 “behavioral citation” he had received as a result of insubordinate statements he allegedly had made to an officer on November 25, 2008. That citation indicated that “due to inmate’s [protective-custody] status, increase [administrative segregation] for an extended period of time.”

Watkins also attached to his complaint a copy of a letter written by him, dated February 15, 2009, and addressed to “Mrs. Harris,” inquiring when he would receive a “reclassification] hearing.” Across the bottom of that letter was handwritten: “No reclass needed, you were only moved from P.C. [protective custody] to permanent Admin. Segreg. No reclass needed.”

The defendants filed a joint answer to Watkins’s complaint. In their answer, the defendants asserted, among other things, that no constitutional violations had occurred in punishing Watkins for his misconduct and that they were entitled to sovereign immunity and qualified immunity; the defendants also asserted that they were entitled to a judgment as a matter of law. Considering only Watkins’s allegations and the defendants’ defenses, the trial court entered a judgment in favor of the defendants.

Analysis

On appeal, Watkins contends, among other things, that the record before the trial court was insufficient to support the judgment entered in favor of the defendants. In its judgment, the trial court indicated that it was relying on only Watkins’s complaint and the defendants’ answer. Thus, we consider only the facts alleged in Watkins’s complaint and the defenses asserted in the defendants’ answer to determine whether those pleadings properly supported a judgment in favor of the defendants.

We treat the trial court’s judgment as a judgment on the pleadings, pursuant to Rule 12(c), Ala. R. Civ. P. Our standard of review is de novo.

“ When a motion for judgment on the pleadings is made by a party, “the trial court reviews the pleadings filed in the case and, if the pleadings show that no genuine issue of material fact is presented, the trial court will enter a judgment for the party entitled to a judgment according to the law.” B.K.W. Enters., Inc. v. Tractor & Equip. Co., 603 So.2d 989, 991 (Ala.1992). See also Deaton, Inc. v. Monroe, 762 So.2d 840 (Ala.2000). A judgment on the pleadings is subject to a de novo review. Harden v. Ritter, 710 So.2d 1254, 1255 (Ala.Civ.App.1997). A court reviewing a judgment on the pleadings accepts the facts stated in the complaint as true and views them in the light most favorable to the nonmoving party. Id. at 1255-56. If matters outside the pleadings are presented to and considered by the trial court, then the motion for a judgment on the pleadings must be treated as a motion for a summary judgment. See Rule 12(c), Ala. R. Civ. P. Otherwise, in deciding a motion for a judgment on the pleadings, the trial court is bound by the pleadings. See Stockman v. Echlin, Inc., 604 So.2d 393, 394 (Ala.1992).’ ”

Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d 501, 507 (Ala.2009) (quoting Universal Underwriters Ins. Co. v. Thompson, 776 So.2d 81, 82-83 (Ala.2000)). “A motion for judgment on the pleadings ... theoretically is directed towards a determination of the substantive merits of the controversy....” 5C Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1369 at 259 (3d ed.2004) (comparing and contrasting a motion to dismiss and a motion for a judgment on the pleadings).

“[Wjhen it is considering a motion for a judgment on the pleadings, the trial court must review the pleadings filed in the case, and only if the pleadings show that no genuine issue of material fact is presented should the trial court enter a judgment for the moving party. See Rule 12(c), Ala. R. Civ. R; B.K.W. Enterprises, Inc. v. Tractor & Equipment Co., 603 So.2d 989 (Ala.1992). A motion for a judgment on the pleadings is designed to provoke a search of the pleadings for the purpose of determining whether there is an issue of fact that requires the introduction of proof. Warren v. Rasco, 457 So.2d 399 (Ala.1984).”

Ex parte Alfa Fin. Corp., 762 So.2d 850, 854 (Ala.1999).

Watkins asserted a claim pursuant to 42 U.S.C. § 1983; that statute provides, in pertinent part,

“[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.... ”

In Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), the United States Supreme Court concluded that a state was not a “person” subject to suit under § 1983. Id. at 65-66. The Court also concluded that actions filed pursuant to § 1983 and asserting claims for damages against government officials or employees in their official capacities were, in essence, claims asserted against the state itself. Thus, the Court concluded, such claims were no different from claims asserted against the state itself. Id. at 71. The Court recognized, however, that a state official in his or her official capacity, when sued for injunctive relief, would be a “person” under § 1983 because “‘official-capacity actions for prospective relief are not treated as actions against the State.’ ” Id. at 71 n. 10 (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). See also Griswold v. Alabama Dep’t of Indus. Relations, 903 F.Supp. 1492, 1500 n. 7 (M.D.Ala.1995) (applying the rationale of Will v. Michigan Dep’t of State Police, supra, to conclude that the Alabama Department of Industrial Relations was immune from suit in former employee’s § 1983 action; also recognizing that governmental officials or governmental employees may be sued in their official capacities but only for prospective injunctive relief).

Against the backdrop of Will, supra, and Griswold, supra, we consider the claims and defenses asserted in this action. Watkins named the Alabama Department of Corrections as a defendant in this case. As recognized in Griswold, a state agency, as an arm of the state, is immune from suit in a § 1983 action. Thus, the trial court properly dismissed Watkins’s claims against the Department of Corrections.

Watkins also named as defendants in this action Warden Mitchem, Captain Wallace, and Lieutenant Halbrooks. From our reading of the complaint, it is unclear whether Watkins intended to assert claims against these defendants in their official capacities, in their individual capacities, or both. At this stage of the litigation, we must construe the complaint liberally in favor of Watkins. Medlock v. Safeway Ins. Co. of Alabama, 15 So.3d at 507. Thus, we read the complaint as asserting claims against the individual defendants in both their official and individual capacities.

In the defendants’ answer, they stated: “The defendants named in their official capacity plead the affirmative defense of sovereign immunity.” Sovereign immunity, arising pursuant to the Alabama Constitution of 1901, § 14, provides no protection to the defendants because “[s]ection 14 immunity has no applicability to federal-law claims.” Bedsole v. Clark, 33 So.3d 9, 13 (Ala.Civ.App.2009) (rejecting defendants’ argument that they were entitled to a summary judgment on plaintiffs 42 U.S.C. § 1983 claim on the basis of sovereign immunity). See also Ex parte Russell, 31 So.3d 694, 696 (Ala.Civ.App.2009) (actions seeking a declaratory judgment or actions seeking to enjoin state officials from enforcing an unconstitutional law are not subject to sovereign immunity). But see Will, supra (recognizing that governmental officials and governmental employees are subject to suit in § 1983 actions for prospective injunctive relief); and Griswold, supra (same). Because Watkins’s complaint asserted only federal-law claims, the trial court could not have properly granted the individual defendants, named in their official capacities, a judgment on the pleadings on the basis of sovereign immunity. To the extent Watkins sought monetary damages against the individual defendants in their official capacities, however, the trial court’s judgment in favor of the individual defendants is affirmed because claims for such relief are barred under § 1983. See Will, supra; and Griswold, supra.

The individual defendants also asserted in their answer: “The defendants named in then- individual capacity plead the affirmative defense of qualified immunity.” Qualified immunity applies only to governmental officials and governmental employees sued in their individual capacities. See Flood v. State of Alabama Dep’t of Indus. Relations, 948 F.Supp. 1535, 1547 (M.D.Ala.1996) (discussing application of qualified immunity). In Ex parte Madison County Board of Education, 1 So.3d 980 (Ala.2008), our supreme court stated:

“ ‘ “Qualified immunity is designed to allow government officials to avoid the expense and disruption of going to trial, and is not merely a defense to liability.” Hardy v. Town of Hayneville, 50 F.Supp.2d 1176, 1189 (M.D.Ala.1999). “An official is entitled to qualified immunity if he is performing discretionary functions and his actions do ‘ “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” ’ ” Hardy, 50 F.Supp.2d at 1189 (quoting Lancaster v. Monroe County, 116 F.3d 1419, 1424 (11th Cir.1997)).’ ”

Ex parte Madison County Bd. of Educ., 1 So.3d at 990 (quoting Ex parte Alabama Dep’t of Youth Servs., 880 So.2d 393, 402 (Ala.2003)).

In Hardy v. Town of Hayneville 50 F.Supp.2d 1176 (M.D.Ala.1999), an inmate brought claims, pursuant to 42 U.S.C. § 1983, against an arresting police officer, the chief of police, the mayor, and the Town of Hayneville. Upon consideration of the defendants’ motion to dismiss the inmate’s claims, the United States District Court for the Middle District of Alabama discussed at length the law applicable to the affirmative defense of qualified immunity. The court stated:

“[The] Defendants ... have asserted the defense of qualified immunity in a Rule 12(b)(6) motion to dismiss, and they are entitled to qualified immunity at this stage in the proceedings if the Plaintiffs[’] complaint fails to allege a violation of a clearly established constitutional right. Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir.1998). To overcome this immunity, a plaintiff has the burden of ‘pointing to case law which predates the official’s alleged improper conduct, involves materially similar facts, and truly compels the conclusion that the plaintiff had a right under federal law.’ Id. When considering whether the law applicable to certain facts is clearly established, the facts of the case need not be the same, but must be materially similar. Id. at 1339. Only in exceptional cases are the words of a federal statute or constitutional provision specific enough, or the general constitutional rule already identified in decisional law so clearly applicable, so that specific case law is not required. See id. at 1339 n. 6. ‘If ease law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant.’ Lassiter v. Alabama A & M Univ., Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir.1994) (internal quotations and citations omitted).”

50 F.Supp.2d at 1189-90. Because in response to the individual defendants’ motions to dismiss the inmate in Hardy failed to provide the necessary caselaw, the district court granted the motions to dismiss as to the defendants sued in their individual capacities. Id. at 1190.

Upon consideration of the claims asserted in Watkins’s complaint and the defenses asserted in the defendants’ answer, the trial court entered a judgment in favor of the defendants. Because the trial court considered only those two pleadings, the trial court could not have possibly considered any response filed by Watkins to the defendants’ claim of qualified immunity. Thus, the trial court has not afforded Watkins the opportunity to rebut the defendants’ claim that they were entitled to qualified immunity. To the extent the trial court entered a judgment in favor of the individual defendants on the basis of that affirmative defense, that judgment was prematurely entered.

In their answer, the defendants also asserted that Watkins was “charged with a Behavioral Citation and was afforded all necessary and required due process associated therewith under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).” That defense required the trial court to consider whether Watkins’s allegations stated a claim; that defense, in turn, requires this court to do the same.

In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the United States Supreme Court clarified the circumstances in which changes made to an inmate’s conditions of confinement as a result of disciplinary action will deprive him or her of a constitutionally protected liberty interest:

“States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

515 U.S. at 483-84 (citations omitted). In Sandin, supra, the Court concluded that 30 days in segregation did not impinge on the inmate’s protected liberty interest so as to trigger his due-process rights because the disciplinary segregation at issue was substantially similar to the conditions imposed on inmates segregated for other reasons and the inmate’s disciplinary record was later expunged; thus, the disciplinary offense would not impact the inmate’s chance of parole. Id. at 486-87.

In Wilkinson v. Austin, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d 174 (2005), the Supreme Court again acknowledged that the standard established in Sandin, supra, required a court to determine if a prison policy “ ‘impose[d] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Wilkinson, 545 U.S. at 223 (quoting Sandin, 515 U.S. at 484.) The Court discussed its holding in Sandin, supra, and stated:

“Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not ‘present a dramatic departure from the basic conditions of [the inmate’s] sentence.’ Id. at 485. We noted, for example, that inmates in the general population experienced ‘significant amounts of “lockdown time” ’ and that the degree of confinement in disciplinary segregation was not excessive. Id., at 486. We did not find, moreover, the short duration of segregation to work a major disruption in the inmate’s environment. Ibid.”

545 U.S. at 223.

From our reading of Sandin, supra, and Wilkinson, supra, it is clear that the type of deprivation and the degree of that deprivation determines whether an inmate’s right to due process is triggered. Thus, simply because the defendants labeled the citation given to Watkins as a “behavioral” one rather than as a “disciplinary” one does not control whether Watkins’s right to due process was triggered.

The standard established in Sandin has since been applied to conclude that an inmate disciplined for a minor behavioral infraction by short-term segregation from his or her regular prison placement is not entitled to a due-process hearing or other due-process protections. See, e.g., Rodgers v. Singletary, 142 F.3d 1252, 1253 (11th Cir.1998) (affirming the lower court’s holding that a two-month confinement in administrative segregation was not a deprivation of a constitutionally protected liberty interest). In Williams v. Fountain, 77 F.3d 372 (11th Cir.1996), however, the United States Court of Appeals for the Eleventh Circuit determined that placement in solitary confinement for 12 months as punishment for a disciplinary infraction triggered the inmate’s due-process rights. The Eleventh Circuit Court of Appeals stated that 12 months of solitary confinement “represents] substantially more ‘atypical and significant hardship[s] ... in relation to the ordinary incidents of prison life,’ [and] we assume that [a prisoner suffering such] a liberty deprivation [is] entitled to due process.” Williams, 77 F.3d at 374 n. 3.

In their answer, the defendants asserted that Watkins was “charged with a Behavioral Citation and was afforded all necessary and required due process associated therewith under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).” In Wolff v. McDonnell, the Supreme Court stated:

“As the [state statute under consideration] makes clear, there are basically two kinds of punishment for flagrant or serious misconduct. The first is the forfeiture or withholding of good-time credits, which affects the term of confinement, while the second, confinement in a disciplinary cell, involves alteration of the conditions of confinement. If the misconduct is less than flagrant or serious, only deprivation of privileges results.”

418 U.S. 539, 547, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (footnote omitted). In Wolff, only inmates determined to be guilty of a serious misconduct violation were confined in a disciplinary cell and suffered the loss of any good-time credits earned; those disciplinary actions were found to trigger an inmate’s due-process rights because they potentially affected the term of the inmate’s confinement and potentially altered the conditions of the inmate’s confinement. Id. Those inmates determined to have committed only minor behavioral infractions were punished only by a loss of privileges. Thus, in Wolff, those inmates found to have committed a minor behavioral infraction were not disciplined in such a manner as to potentially suffer a change in the conditions of their confinement.

In this case, Watkins alleges that he was confined for six months to administrative segregation — a punishment that potentially constitutes a change in the conditions of his confinement, thereby triggering his due-process rights. Watkins asserts that that punishment was imposed without due process. Additionally, the defendants themselves characterized Watkins’s violation as a minor behavioral citation. Thus, we fail to see how the defendants’ reliance upon Wolff, supra, without further elaboration, could have entitled them to a judgment on the pleadings.

To the extent the defendants claim that no constitutional deprivation occurred because Watkins’s right to due process was not triggered by the receipt of a mere “behavioral” citation, that argument fails to respond to Watkins’s allegation that Warden Mitchem adopted and implemented a policy of documenting all infractions — whether minor or substantial — committed by inmates in protective custody at the Limestone Correctional Facility by the issuance of “behavioral” citations. Thus, the defendants’ argument offers no support for the judgment entered in their favor. As stated above, it is the nature of the deprivation that determines whether the protections of due process are triggered, not the label given to the offense that ultimately gave rise to the deprivation. See Sandin, supra.

Further, because the trial court considered whether the defendants were entitled to a judgment on the pleadings, the record is wholly devoid of any evidence to establish that six months in administrative segregation did not represent a significant departure from the normal conditions of Watkins’s confinement and did not work a major disruption in Watkins’s prison environment, sufficient to trigger his due-process rights. See Sandin, supra. Under Sandin, that is the issue alleged in Watkins’s complaint.

The defendants also asserted in their answer the affirmative defenses of estop-pel, illegality, waiver, and unclean hands. We find it sufficient to state that, without factual development and evidentiary support, those defenses provided no basis upon which the trial court could have entered a judgment on the pleadings in favor of the defendants.

We affirm the judgment entered in favor of the Department of Corrections; we also affirm the judgment as to any claims asserted against the individual defendants in their official capacities seeking monetary damages. The trial court’s judgment is due to be reversed, however, as to any claims asserted against the individual defendants in their official capacities and seeking only prospective injunctive relief and as to any claims asserted against the defendants in their individual capacities. We express no opinion on the likelihood of success on Watkins’s claims; we simply find that the trial court erred in entering a judgment on the pleadings in favor of the individual defendants at this stage of the litigation. The cause is remanded to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

THOMPSON, P.J., and PITTMAN, BRYAN, and THOMAS, concur.

      . It is unclear whether Watkins intended to state any claims against the defendants in their individual capacities.

      . On September 2, 2009, Watkins filed a "Response to Defendants’ Answer.” As explained in more detail below, we need not consider Watkins’s response.

      . The author of that writing is not indicated.

      . That judgment incorrectly states that a trial of Watkins’s claims was held; only a hearing was held before the trial court on August 25, 2009.

      . We also note that, even though exhibits were attached to Watkins's complaint, the trial court's consideration of those exhibits did not require the trial court to treat the defendants' motion as a motion for a summary judgment. See, e.g., Wilson v. First Union Nat'l Bank of Georgia, 716 So.2d 722, 726 (Ala.Civ.App.1998) (holding that the trial court’s consideration of documents attached to the complaint, the identity and authenticity of which were not challenged, did not require conversion of a motion to dismiss into a motion for a summary judgment).

      . We acknowledge that the holding of Wolff v. McDonnell, supra, has been further refined in Sandin, supra. We have already addressed Sandin; as explained herein, Sandin also does not entitle the defendants to a judgment on the pleadings. We also note that the defendants did not rely on Sandin in their answer.


author: SHAW, Judge.

text:
    Richard Corey FOX v. STATE of Alabama.
    CR-05-0425.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 2007.
    Certiorari Denied Aug. 14, 2009 Alabama Supreme Court 1061761.

      Richard Corey Fox, pro se.
    Troy King, atty. gen., and John M. Porter, asst. atty. gen., for appellee.
   On State’s Application for Rehearing

SHAW, Judge.

In an opinion issued on June 29, 2007, this Court granted Richard Corey Fox’s application for rehearing, withdrew our unpublished memorandum issued on June 16, 2006, and remanded this case for the circuit court to conduct an evidentiary hearing on Fox’s claim in his Rule 32, Ala. R.Crim.P., petition for postconviction relief that he was denied counsel at arraignment. The State has now filed an application for rehearing asking that we set aside our judgment and, as we did in our unpublished memorandum issued on June 16, 2006, affirm the circuit court’s summary denial of Fox’s Rule 32 petition. We overrule the State’s application; however, the opinion issued on June 29, 2007, is withdrawn, and the following opinion is substituted therefor.

Richard Corey Fox appeals the circuit court’s summary denial of his Rule 32, Ala.R.Crim.P., petition for postconviction relief, in which he attacked his 1991 conviction for capital murder and his resulting sentence of life imprisonment without the possibility of parole. This Court affirmed Fox’s conviction and sentence on appeal. See Fox v. State, 602 So.2d 484 (Ala.Crim.App.1992). This Court issued a certificate of judgment on August 11,1992.

Fox filed this, his second, Rule 32 petition on May 2, 2005. In his petition, Fox alleged that the trial court lacked jurisdiction to render the judgment or to impose the sentence because, he said, he was denied counsel at arraignment. He argued that, although he was represented by counsel throughout the proceedings, his counsel was not in fact present in the courtroom when he was arraigned. On August 16, 2005, Fox filed an amendment to his petition, in which he argued that his counsel was ineffective for not presenting mitigating evidence at the guilt phase of his trial in order to obtain a conviction for a lesser-included offense. Fox argued that his ineffective-assistance claim constituted newly discovered material facts under Rule 32.1(e) because, he said, the United States Supreme Court, on June 20, 2005, announced a new standard for evaluating ineffeetive-assistance-of-counsel claims in Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). After receiving a response from the State, the circuit court, on October 26, 2005, summarily denied Fox’s petition and the amendment to the petition.

Fox’s claim that his counsel was ineffective is barred by Rule 32.2(b), Ala. R.Crim.P., because this is Fox’s second Rule 32 petition. Contrary to Fox’s contention, his claim does not constitute newly discovered material facts under Rule 32.1(e), Ala.R.Crim.P. Therefore, denial of this claim was proper.

Fox’s claim that he was denied counsel at arraignment is jurisdictional. See Betton v. State, 940 So.2d 1075 (Ala.Crim.App.2005). Therefore, this claim is not subject to the procedural bars in Rule 32.2(a) and Rule 32.2(c). Moreover, this claim was not raised in Fox’s previous Rule 32 petition; therefore, it is likewise not subject to the procedural bar in Rule 32.2(b). See Ex parte Trawick, 972 So.2d 782 (Ala.2007). This claim is also pleaded with sufficient specificity to satisfy the requirements in Rule 32.3 and Rule 32.6(b), Ala.R.Crim.P. Moreover, we cannot agree with the State that the record affirmatively shows that Fox was represented by counsel at arraignment. The case-action summary lists William Veitch as Fox’s counsel, and indicates that Fox was arraigned on June 19, 1990. However, there is no notation on the ease-action summary stating that Veitch was actually present at the arraignment, nor is there a transcript of arraignment in the record. The record does contain numerous pretrial motions filed by Veitch on June 19,1990, the day of arraignment, but nothing in the record indicates that those motions were filed in open court. Furthermore, as the State correctly points out in its brief to this Court, at a hearing on January 28, 1991, just before the trial began, Veitch stated: “The defendant’s defense has included a possible insanity plea, which we reserved at the time he was arraigned on January third, 1991.” (Record on Direct Appeal, R. 35.) Later during the same hearing, Veitch stated: “And Your Honor specifically allowed me to withhold that part of my plea at that time at arraignment in case I wanted to add an insanity defense.” (Record on Direct Appeal, R. 38.) Although these statements suggest that Veitch was present with Fox at his arraignment, as noted above, Fox was arraigned on June 19, 1990, not January 3, 1991. The record reflects that January 3, 1991, was a hearing on pretrial motions, not an arraignment. Thus, we cannot say that counsel’s statements at the January 28, 1991, hearing affirmatively show that Fox was represented by counsel at arraignment. See, e.g., Castillo v. State, 925 So.2d 284 (Ala.Crim.App.2005). Therefore, because Fox’s claim is not procedurally barred, is sufficiently specific, and is meritorious on its face, we must remand this case for the circuit court to allow Fox an opportunity to prove his claim. See Ford v. State, 831 So.2d 641, 644 (Ala.Crim.App.2001) (“Once a petitioner has met his burden of pleading so as to avoid summary disposition pursuant to Rule 32.7(d), Ala.R.Crim.P., he is then entitled to an opportunity to present evidence in order to satisfy his burden of proof.”).

Based on the foregoing, we remand this case for the circuit court to allow Fox an opportunity to present evidence to support his claim that he was denied counsel at arraignment. The court shall either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions. See Rule 32.9(a), Ala.R.Crim.P. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Fox’s claim and may grant whatever relief it deems necessary. Due return shall be filed with this Court within 42 days of the date of this opinion, and shall include the circuit court’s written findings of fact, a transcript of the evidentiary hearing, if one is conducted, and any other evidence received or relied on by the court in making its findings.

STATE’S APPLICATION OVERRULED; OPINION OF JUNE 29, 2007, WITHDRAWN; OPINION SUBSTITUTED; REMANDED WITH DIRECTIONS.

BASCHAB, P.J., and McMILLAN, WISE, and WELCH, JJ., concur.

      . We note that, in his brief on appeal, Fox argues that the circuit court did not rule on this claim, which was presented in the amendment to his petition. We disagree. Fox filed his amendment timely, some two months before the circuit court denied his petition, and there is no indication in the record that the circuit court did not accept the amendment. In denying Fox’s petition, the circuit court merely noted on the case-action summary that the petition was "without merit.” (C. 44.) We construe this ruling to encompass both the claim asserted in Fox’s petition and the claim asserted in his amendment. We also note that, although the circuit court did not apply Rule 32.2(b) to this claim, the State pleaded Rule 32.2(b) in its response to Fox's petition. Therefore, this Court may apply Rule 32.2(b) to this claim under the Alabama Supreme Court’s opinion in Ex parte Clemons, [Ms. 1041915, May 4, 2007] - So.3d-(Ala.2007).

      . This court may take judicial notice of its own records. See Hull v. State, 607 So.2d 369, 371 (Ala.Crim.App.1992).

       Note from the reporter of decisions: On February 26, 2010, on return to remand, the Court of Criminal Appeals affirmed, without opinion. On March 19, 2010, that court denied rehearing, without opinion. On June 18, 2010, the Supreme Court denied certiorari review, without opinion (1090913).


author: BASCHAB, Presiding Judge. WELCH, Judge,

text:
    Richard Jerome FLOWERS v. STATE of Alabama.
    CR-06-1819.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2008.
    Rehearing Denied Dec. 12, 2008.
    Certiorari Quashed June 25, 2010 Alabama Supreme Court 1080340.
    Jeffery C. Duffey, Montgomery, for appellant.

      Troy King, atty. gen., and Kevin W. Blackburn, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN and WISE, JJ., concur. SHAW, J., concurs in the result; and WELCH, J., concurs in part and dissents in part, with opinion.

WELCH, Judge,

concurring in part and dissenting in part.

I concur with the majority’s holding in its unpublished memorandum as to Richard Jerome Flowers’s guilt-phase issues. I respectfully dissent from Part II of the memorandum, in which the majority affirms the circuit court’s rejection of Flowers’s claim that the attorney appointed to represent him for his motion for a new trial rendered ineffective assistance. I would remand the case to the circuit court for a new penalty-phase proceeding.

Flowers was convicted of two counts of capital murder for the killing of Annie Addy. The murder was made capital because he committed it after having been convicted of another murder during the 20 years preceding the murder, see § 13A-5-40(a)(13), Ala.Code 1975, and because he committed it through the use of a deadly weapon while Addy was in a vehicle, see § 13A-5-40(a)(17), Ala.Code 1975.

The record tends to show the following: Flowers was represented at trial by lead counsel Robert Powers and assistant counsel Mickey McDermott. After the trial, McDermott filed a motion for a new trial. In the motion he asserted that he had been appointed to the case “only days before trial,” and he essentially asserted that defense counsel was not prepared for trial because counsel had not filed necessary motions such as, but not limited to, a motion for an investigator, a motion for a psychological assessment, a motion for the suppression of Flowers’s statements to police, or a motion for the inspection of evidence. (Record on direct appeal, CR-97-1254, at CR. 181.) The motion also asserted that counsel was ineffective because “no defense witnesses had been called or interviewed by the lead counsel.” (Record on direct appeal, CR-97-1254, at CR. 182.) After this motion was filed, but before a hearing on the motion, Powers and McDermott withdrew as counsel, and Paul Copeland was appointed to represent Flowers at his new-trial hearing and on appeal. Copeland did not amend the motion for a new trial, but he did obtain sufficient continuances to enable a review of the trial transcript and to conduct interviews of defense counsel and the prosecutor. At the new-trial hearing Copeland attempted to prove that Flowers had received ineffective assistance of trial counsel; however, the trial court denied the motion for a new trial. Copeland was later replaced as appellate counsel.

In Claim III of his Rule 32 petition, Flowers claims that Copeland, his post-trial counsel, rendered ineffective assistance. Flowers “incorporated here by reference” Claim II of his petition, which set forth his claims concerning trial counsel’s deficient performance and alleged prejudice. (CR. 921.) Claim III included the assertion that Copeland did not adequately challenge Flowers’s trial counsel’s failure to investigate and present at the penalty phase of his trial any of the easily attainable mitigating evidence. Flowers argued in Claim II that had counsel investigated and prepared for the penalty phase of his trial, the jury and the trial court would have learned of much mitigating evidence and “the ameliorative circumstances surrounding the underlying offense that served as the only statutory aggravating circumstance.” (CR. 843.)

Flowers asserted that trial counsel failed to “interview family members, teachers, pastors, social workers, or anyone else who was acquainted with Mr. Flowers.” (CR. 845.) Flowers pleaded that

“[c]ounsel could have obtained the extensive information related to mitigation outlined below from the (sic) at least [the] following individuals: Patricianna White, Janice Bivens, Grace Flowers, Horace Flowers, Brenda Flowers, Lonnie Townsend, Michael Townsend, Brenda Taylor, Marcia Tomberlin, Buddy De-Vaughn, Karen Bowden, James Henderson, Sr., James Henderson, Jr., Sylvia Miller, Tony Miller, Donald Ray Stinson, George Jones, Gladys Neal, James Crawford, Mary Griffin, Carolyn Ray Johnson, Lillian Adams, Catherine Scott, Sandra Adams, Reverend Foster, Tommy Harris, and Milton Harris.”

(CR. 846.) He also asserted that each of these individuals was willing to testify on his behalf. Counsel then outlined the awful circumstances of Flowers’s life, which, I note, could have served as mitigating evidence.

On March 15, 2006, the State acknowledged at a hearing preceding the Rule 32 hearing, that Flowers’s claim regarding Copeland was “proper for an evidentiary hearing.” (Supp. Rec. # 2 at R. 11.) On November 15, 2006, a hearing was conducted on Flowers’s Rule 32 petition. Testimony was taken directly and by deposition. Copeland testified by deposition that he determined that “McDermott was appointed to the case right before trial” as a replacement for attorney Vinson Jaye. At that time, there was no indication that tidal counsel had conducted any investigation, interviewed witnesses, or filed any motions on Flowers’s behalf. Copeland stated that Powers told him that he thought he would obtain a continuance before trial, but his request for a continuance was denied. Copeland testified that in his interview with the prosecutor, the prosecutor “was deeply, deeply concerned that this case had not been prepared at all.” (R. 1268.)

In preparation for the hearing on the motion for a new trial, Copeland did not interview witnesses, other than counsel, but relied solely on the trial transcript. The transcript of the trial submitted to this Court on direct appeal, upon which Copeland relied, reflects that Johnny Flowers, Flowers’s brother, was the only witness to testify for Flowers before the jury during the penalty phase. I do not believe that his testimony was compelling mitigation evidence, and it omitted most of the mitigation discovered by Rule 32 counsel. Moreover, a review of the guilt-phase testimony did not disclose that the jury ever heard the vast majority of the mitigation testimony presented at the hearing on Flowers’s Rule 32 petition. During the sentencing hearing that was conducted before the trial judge and not the jury, no witnesses were presented — a fact readily observable on the face of the trial record.

Among the witnesses presented at the Rule 32 hearing were Flowers’s special-education teacher, a homicide detective involved in Flowers’s previous murder conviction, Flowers’s school psychometrist, various siblings, and a psychologist. The essence of their testimony was as follows: Flowers was of below-average intellect. He was raised in an extremely impoverished home with no modern necessities such as running water or electricity. He attended school as a special-education student. He was bathed and fed at his school, and his clothes were washed at his school. He sometimes slept under his house with dogs. Flowers’s father beat the children and his wife, and Flowers’s mother was a severe alcoholic who died at age 43. Flowers’s father died when Flowers was five years old. Flowers was teased by other children at school. He suffered from developmental problems, his cognitive functioning was low, and he tested within the mentally retarded range. As a young child he engaged in banging his head on hard objects such as the floor, and he wet the bed. He received little or no medical or dental care. Other men were in and out of his mother’s house following his father’s death. There was an accusation that Flowers was the victim of sexual abuse. At a very young age Flowers began using alcohol and drugs, and he made at least one suicidal gesture as a young teen. The prior murder, for which he was convicted while he was a teenager, allegedly involved an attempted sexual assault on Flowers by the victim.

On June 5, 2007, the circuit court denied Flowers’s Rule 32 petition for the following reasons:

“In Issue III of his fourth amended petition, Flowers raises claims alleging that Paul Copeland, his motion for new trial counsel, was ineffective. (Pet. at 147-148.) Those claims are contained in paragraphs 197-198 of his petition....
“... [Tjhose claims are dismissed, under Rule 32.7(d) of the Alabama Rules of Criminal Procedure, because they fail to comply with the specificity and full factual pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure. In his petition, Flowers devotes just two paragraphs to his claims alleging that his motion for new trial counsel (Copeland) and his appellate counsel (Howard) were ineffective. With regard to Paul Copeland, Flowers sets forth the bare assertion that Copeland was ineffective for failing to ‘adequately prove’ the ineffective assistance of trial counsel claims that he litigated at the hearing on Flowers’s motion for new trial and for failing to raise the claims (Claims I and IV-XV) that Flowers raises in his Rule 32 petition.
“In pleading those claims, Flowers does not even attempt to explain what more Copeland should have done in raising and litigating his ineffective assistance of trial counsel claims. Flowers also fails to proffer any facts that would tend to show that he could have prevailed on those claims if Copeland had litigated them differently and that he was, therefore, prejudiced by Copeland’s performance. Flowers also fails to proffer any facts that would support his bare assertion that he would have obtained relief on the claims (Claims I and IV-XV) in his Rule 32 petition if Copeland had raised those claims at the hearing on his motion for new trial. In fact, Flowers does not discuss any of those claims in this portion of his petition. Instead, Flowers merely incorporates them by reference and then alleges, in a conclusory fashion, that Copeland should have raised them in litigating his motion for new trial. This Court does not bear the burden of making Flowers’s argument for him.
“Rule 32.6(b) of the Alabama Rules of Criminal Procedure provides that ‘[a] bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’ See also Thomas v. State, 766 So.2d 860, 889 (Ala.Crim.App.1998) (‘Conclusory allegations not supported by specifics do not warrant relief.’). Given that Flowers’s claims alleging that Paul Copeland was ineffective fail to comply with the specificity and full factual pleading requirements of Rules 32.3 and 32.6(b) of the Alabama Rules of Criminal Procedure, those claims are dismissed, under Rule 32.7(d) of the Alabama Rules of Criminal Procedure.”

(C.R. 1676-81.)

I believe the circuit court’s ruling is in error.

I do not believe that the claim fails for lack of specificity. Here, the circuit court, in what I believe was a proper ruling, provided Flowers with an opportunity to prove his claim at a hearing. I believe that Flowers did prove his claim. I do not believe that the circuit court can properly rule that the pleading was insufficient following a hearing in which a plethora of witnesses presented testimony supporting the claim.

This case is distinguishable from Coral v. State, 900 So.2d 1274, 1282-83 (Ala.Crim.App.2004), overruled on other grounds, Ex parte Jenkins, 972 So.2d 159 (Ala.2005), which appears to hold that a hearing conducted on an insufficiently pleaded Rule 32 petition denied the State due process. Coral filed a Rule 32 petition asserting numerous ineffective-assistance-of-counsel claims. The State moved for a partial dismissal because, it argued, Coral had not met his burden of sufficiently pleading these claims. The circuit court allowed Coral to file an amended petition, in response to which the State again moved for a partial dismissal. The circuit court held a hearing on the State’s motion. The circuit court dismissed all but 2 of the ineffective-assistance-of-counsel claims and gave the parties 10 days to file briefs regarding the 2 remaining claims. The State filed a brief but Coral did not. He filed an amended brief two months later. The circuit court dismissed the ineffective-assistance-of-counsel claims without a hearing. We agreed with the circuit court’s ruling regarding the sufficiency of the pleading underlying the two claims and stated:

“[H]ow is the State to defend against the general claim that counsel failed to prepare or investigate the case, without any specific facts to support the allegation? The intent in adopting Rule 32.6(b), Ala.R.Crim.P., was to ensure that one party did not obtain an unfair advantage over the other party — to place both the State and the petitioner on a level playing field.”

Flowers’s case is distinguishable from Coral. Here the State conceded at the March 15, 2006, hearing that Flowers’s claim regarding Copeland was “proper for an evi-dentiary hearing.” (Supp. Rec. # 2 at R. 11.) Thus, the State was in no way blindsided at Flowers’s Rule 32 hearing as the State was in Coral.

Also, for the same reason set forth above, I believe that the circuit court erred by finding that Flowers’s pleading was insufficient because he “merely incorporates” by reference the assertions in Claim II as factual support for Claim III. This is not a case where issues from another case were incorporated by reference. The argument in Claim II is clearly set forth and presents no impediment to an understanding of Claim III. To hold otherwise, in my opinion, elevates form over substance.

I note that, although not a finding by the circuit court, this Rule 32 petition is the first opportunity presented to Flowers to challenge the performance of counsel appointed to represent him for a motion for a new trial. See Rule 32.2(d), Ala. R.Crim. P. Copeland was appointed as appellate counsel. “A Rule 32 petition is the first opportunity Brown had to challenge his appellate counsel’s effectiveness.” Brown v. State, 903 So.2d 159 (Ala.Crim.App.2004). Therefore, unlike his challenge to trial counsel, which was raised at trial, this claim is not procedurally barred by Rules 32.2(a)(3) and (5).

I also believe that Flowers proved his claims at the hearing and is entitled to relief.

“ ‘ “An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant’s background, for possible mitigating evidence.” Porter v. Singletary, 14 F.3d 554, 557 (11th Cir.), cert. denied, 513 U.S. 1009, 115 S.Ct. 532, 130 L.Ed.2d 435 (1994). The failure to do so “may render counsel’s assistance ineffective.” Bolender [v. Singletary], 16 F.3d [1547] at 1557 [ (11th Cir.1994) ].’ ”

Harris v. State, 947 So.2d 1079, 1115 (Ala.Crim.App.2004), overruled in part on other grounds by Ex parte Jenkins, 972 So.2d 159 (Ala.2005) (quoting Baxter v. Thomas, 45 F.3d 1501, 1513 (11th Cir.1995)).

“ ‘The United States Court of Appeals for the Eleventh Circuit has held that trial counsel’s failure to investigate the possibility of mitigating evidence is, per se, deficient performance. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991) (“our case law rejects the notion that a ‘strategic’ decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them”), cert. denied, 503 U.S. 952, 112 S.Ct. 1516, 117 L.Ed.2d 652 (1992); see, also, Jackson v. Herring, 42 F.3d 1350, 1366-68 (11th Cir.) (“Although counsel need not ‘investigate every evidentiary lead,’ he must gather enough knowledge of the potential mitigation evidence to arrive at an ‘informed judgment’ in making [the decision not to present such evidence] .... [A] legal decision to forgo a mitigation presentation cannot be reasonable if it is unsupported by sufficient investigation.”) (emphasis added; citations omitted), cert. dismissed, 515 U.S. 1189, 116 S.Ct. 38, 132 L.Ed.2d 919 (1995). Furthermore, trial counsel may be found ineffective for failing to present evidence of adjustment to incarceration, evidence of mental-health problems.... See Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (holding that a capital defendant must be permitted at the penalty phase of his trial to introduce evidence of adjustment and good behavior while incarcerated); Horton v. Zant, supra (counsel found ineffective for not presenting evidence of adjustment to incarceration); Blanco v. Singletary, 943 F.2d 1477 (11th Cir.1991), cert. denied, 504 U.S. 943, 112 S.Ct. 2282, 119 L.Ed.2d 207 (1992) (counsel found ineffective for failing to introduce evidence that defendant had mental-health problems and a veiy low IQ and had suffered from various bouts of paranoia and depression) ....’”

Harris, 947 So.2d at 1120 (quoting Ex parte Land, 775 So.2d 847, 853-54 (Ala.2000)) (emphasis omitted).

I believe that the evidence presented at the Rule 32 hearing clearly reflected that each counsel associated with this case failed to conduct any investigation into possible mitigating evidence. See Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). I believe there was mitigating evidence to be found with minimal investigatory effort; thus, I believe that trial counsel was ineffective and that new-trial counsel was ineffective for failing to argue this in the motion for a new trial.

      . A psychometrist conducts IQ tests.