[¶ 16] There is, however, some indication that it is not appropriate or expected for one to raise one's own ineffectiveness.See, e.g., Nelson v. State, 649 So.2d 1299, 1300 (Ala.Crim.App. 1994); State v. Suarez, 137 Ariz. 368, 670 P.2d 1192, 1204 (App. 1983); People v. Fields, 88 Ill.App.3d 821, 44 Ill.Dec. 86, 410 N.E.2d 1178 (1980); Bottoson v. State, 674 So.2d 621, 625 n. 5 (Fla. 1996) (Kogan, J., concurring in part, dissenting in part); Etienne v. State, 716 N.E.2d 457, 463 (Ind. 1999); Bear v. State, 417 N.W.2d 467, 472 (Iowa Ct.App. 1987); Hill v. State, 749 So.2d 1143, 1149 (Miss.Ct.App. 1999); State v. Hooks, 92 Ohio St.3d 83, 748 N.E.2d 528, 530 (2001); Robinson v. State, 16 S.W.3d 808, 810-11 (Tex.Crim.App. 2000). We too have identified that such a practice is questionable. Osborn v. State, 672 P.2d 777, 795 (Wyo. 1983). For this very reason, several jurisdictions recognize a difference between requests for post-conviction relief when the same attorney has represented a defendant both at trial and on appeal and when different attorneys have handled each matter.
See A.G. v. State, 989 So.2d 1167, 1172 (Ala.Crim.App.2007) (“ ‘If trial counsel is also serving as appellate counsel, counsel cannot be expected to allege on appeal his own ineffectiveness.’” (quoting Nelson v. State, 649 So.2d 1299, 1300 (Ala.Crim.App.1994))). Likewise, the Alabama Rules of Professional Conduct dictate that “[a] lawyer shall not represent a client if the representation of that client may be materially limited by ... the lawyer's own interest.”
Smith was represented by the same attorneys at trial and on appeal, and counsel are not expected to allege their own ineffectiveness. E.g., Nelson v. State, 649 So.2d 1299, 1300 (Ala.Crim.App.1994). We caution the trial court on remand to distinguish between the burden of pleading and the burden of proof when it addresses the claims in Smith's amended petition.
Courts in other jurisdictions have reached this conclusion. E.g., Nelson v. State, 649 So.2d 1299, 1300 (Ala.Crim.App. 1994) ("If trial counsel is also serving as appellate counsel, counsel cannot be expected to allege on appeal his own ineffectiveness." (quotation omitted)); People v. Stewart, 121 Ill.2d 93, 117 Ill.Dec. 187, 520 N.E.2d 348, 354 (1988) (declaring that a refusal to consider a petitioner's ineffective-assistance-of-counsel claims was not manifestly unjust because "defendant was [not] represented by the same counsel during his trial proceedings and on his direct appeals"); Lynch v. State, 951 So.2d 549, 551 (Miss. 2007) ("[W]here the defendant is represented by the same counsel at trial and on appeal, ineffective assistance claims have been asserted via proper post-conviction proceedings, even though the point was not preserved at trial and was not raised on direct appeal."); Davis v. State, 123 P.3d 243, 246 (Okla.Crim.App. 2005) ("[W]e find that the importance of the Sixth Amendment compels us to consider all claims of ineffective assistance of trial counsel raised in a timely application f
"If trial counsel is also serving as appellate counsel, counsel cannot be expected to allege on appeal his own ineffectiveness." Nelson v. State, 649 So.2d 1299, 1300 (Ala.Crim.App. 1994). Clearly then, counsel was not ineffective for not challenging his own ineffectiveness on appeal, and summary denial of this allegation of ineffective assistance of counsel was proper.
McMILLAN, Judge. This cause was remanded with instructions to the trial court to enter an order making specific findings of fact concerning the issue of ineffective assistance of trial counsel raised in the Jonathan Nelson's Rule 32, A.R.Cr.P., petition. 649 So.2d 1299. The trial court has returned to us the following findings of fact and order denying the petition: "This cause coming on to be heard upon remand by the Alabama Court of Criminal Appeals to determine the merits of defendant's claim of ineffective assistance of counsel filed under his petition under Rule 32, A.R.Cr.P.