Jesse Earl Scheuing v. State of Alabama (Appeal from Calhoun Circuit Court: CC-09-426.60)

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-2022-0684
_________________________

Jesse Earl Scheuing

v.

State of Alabama

Appeal from Calhoun Circuit Court
(CC-09-426.60)

COLE, Judge.

Jesse Earl Scheuing, an inmate on Alabama's death row, appeals

the Calhoun Circuit Court's summary dismissal of his Rule 32, Ala. R.

Crim. P., petition for postconviction relief.
CR-2022-0684

Facts and Procedural History

"In August 2008, Scheuing was released on parole in the
State of Georgia. He had been convicted of thefts of
automobiles, breaking and entering into automobiles, escape,
and being a felon in possession of a firearm. James Potts, a
friend of Scheuing who lived in Alabama, went to Georgia and
brought Scheuing to Alabama to stay with Potts and his wife,
Tifani Kulp. On November 20, 2008, Scheuing failed to report
to his parole officer as required by the terms of his parole.

"A couple of days before Thanksgiving, Scheuing stole a
Kia Sportage automobile from Dean Jakiel's driveway. Jakiel
had borrowed the Sportage from Lani Harrison, his daughter,
and had parked it in his driveway, leaving the keys in the
ignition. Also left in the Sportage was Jakiel's loaded, .38
caliber, five-shot, hammerless Smith and Wesson revolver
and a box of ammunition for the gun. Within a day or two
after stealing the Sportage, Scheuing abandoned the vehicle,
but he kept the gun and ammunition that was in the vehicle.

"On November 26, 2008, the day before Thanksgiving,
Potts took Scheuing to the home of Sean Cook, who was a
friend of Potts. While there the three men smoked marijuana,
and Cook sold a small amount of marijuana to Potts and
Scheuing. That night, Potts, Kulp, and Scheuing gave
Jeanette Rutledge, a friend of Potts and Kulp, a ride to her
home. During the ride, Potts told her that he had a .38 caliber
pistol in the car.

"Shortly after midnight on November 28, 2008,
Scheuing decided to rob a store to get money to buy Potts an
Xbox 360 video-game console and to get transportation to
Grand Rapids, Michigan, where Scheuing wanted to meet a
woman he had communicated with in an Internet chat room.
Scheuing, Potts, and Kulp got into Potts's car, with Potts
driving and Scheuing sitting in the back seat behind him.
Sometime during the ride, Scheuing twice test fired the gun

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he had stolen from the Sportage by shooting it out the car
window; he did this to learn the gun's characteristics when
fired. Also at some point during the night, Scheuing decided
that he was going to kill whomever he robbed. The three
drove around trying to find a place that would be easy to rob.
They rejected most of the stores they saw because the clerks
were enclosed in bullet-proof glass; they also rejected a Waffle
House restaurant because it had too many customers.
Scheuing finally decided that the target would be the Pak-a-
Sak convenience store in Oxford. Although Potts and Kulp
knew that Cook worked at the store as a cashier, they did not
recognize him as the cashier when they drove by the store that
morning.

"Potts parked the car a couple of blocks behind the Pak-
a-Sak store. Scheuing walked to the store; he had the .38
caliber pistol in the back pocket of his pants. When Scheuing
walked up to the store, Cook, who had to push a button to
allow someone to enter the store, recognized Scheuing and
allowed him in. Scheuing briefly spoke with Cook before
asking where the restroom was. Scheuing had planned to put
on a hockey mask he had with him while in the restroom, but,
because Cook had recognized him, Scheuing decided not to use
the mask. There were three customers in the store when
Scheuing first entered, so he went into the restroom and
waited until he heard them leave. After leaving the restroom,
Scheuing walked to the counter where he talked with Cook
about various topics. As they spoke about marijuana and the
'munchies' (State's Exhibit 96), Scheuing said that he was
hungry and walked to the candy aisle. There, where Cook was
unable to see what Scheuing was doing, Scheuing moved the
.38 caliber pistol from his pants pocket to his coat pocket. With
his hand in the coat pocket containing the pistol, Scheuing
then walked back to the counter and continued speaking with
Cook. Cook turned his head, looking out the window at a
passing car; Scheuing pulled out the gun, and, when Cook
turned back toward Scheuing, Scheuing shot him in the head.
Scheuing then took the cash-register drawer and ran out the

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door. He went back to the car and told Potts and Kulp that
he had shot Cook. The three returned to Potts's home where
Scheuing and Potts took the money from the cash-register
drawer. The two men then took the cash-register drawer to a
remote road where they cleaned their fingerprints from the
cash-register drawer and then abandoned it.

"A short time after Scheuing left the store, Mary De La
Zerda, a regular customer of the Pak-a-Sak store and an
acquaintance of Cook's, arrived there. When she first entered
the store, De La Zerda called for Cook because she did not see
him. After getting no response from him, she noticed that the
counter area was in disarray. De La Zerda again called for
Cook and, receiving no response, walked behind the counter
where she found him lying on floor. She then went outside
and telephoned emergency 911.

"Officer Jake Durham of the Oxford Police Department
was dispatched to the Pak-a-Sak store in response to the 911
call and was the first officer to arrive on the scene. After
speaking with De La Zerda, Officer Durham entered the store
with Officer Eric Hood and Officer Jamie Clark. Once inside,
Officer Durham noticed that the cash-register drawer was
missing and that 'items were out in the floor and strewn all
over the place.' (R. 542.) After seeing Cook lying on the floor,
Officer Durham alerted the other officers of the situation and
had them separate. Officer Durham went 'straight through
the building back toward the cooler and the bathroom areas'
(R. 543) while Officer Hood went down the aisles and Officer
Clark went behind the counter. Officer Clark saw Cook on the
floor and noticed that '[h]e had some vomit around his mouth,'
'had a very gray complexion,' and 'appeared to be deceased.'
(R. 635.) After not finding anyone else in the building, the
officers went back outside, put up crime-scene tape, and
secured the scene until someone from the investigation
division of the police department arrived.

" ….

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"After Scheuing and Potts disposed of the cash-register
drawer, they went to a Walmart retail store where they
purchased an Xbox 360, an Oblivion video-game cartridge for
the video- game console, and a Playstation 2 video-game
cartridge. The Playstation 2 cartridge was purchased so
Scheuing would have something to play while Potts was
playing Oblivion. While they were playing the games at
Potts's house, Cook's teenage brother called Potts and
threatened him, Kulp, and their son. Cook's brother made the
threats because he believed that Potts had shot Cook.

"Due to the telephone call, Potts decided that they
needed to get rid of the gun Scheuing had used to kill Cook.
Scheuing, Potts, and Kulp got back into Potts's vehicle. While
they were driving over a bridge, Scheuing threw the gun and
the ammunition out of the passenger-side window and into a
lake.

"At the Pak-a-Sak store, investigators contacted a
manager who came in and retrieved video from the recording
equipment at the store. The video revealed that an individual
wearing a black and red coat and a black hat with a skull on
top came into the store and, after walking around the store
and speaking with Cook, pulled a gun out of his coat pocket
and fired one shot at Cook. The man then picked up the cash-
register drawer and ran out the door. Investigators were also
able to obtain a video of a parking lot from another local
business. That video showed the man who shot Cook getting
out of the back seat of a car and then returning to the back
seat of the same car a few minutes later.

"After dropping Kulp off at work, Scheuing and Potts
went to the Greyhound bus station to purchase a ticket to
Grand Rapids, Michigan. Because they had spent so much
money on the video-game console and cartridges, Scheuing
did not have enough money left to buy the bus ticket.
Scheuing and Potts decided to stay away from Potts's home

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for the day and that, in the evening, Potts would drop
Scheuing off somewhere so Scheuing could steal a car to drive
to Grand Rapids.

"Scheuing and Potts spent the day together, smoking
marijuana and selling game cartridges and memory cards.
After picking Kulp up from work, Potts and Kulp dropped
Scheuing off at an abandoned mobile-home park. Scheuing
stashed his belongings at the mobile-home park, then stole a
GMC Yukon sport-utility vehicle that belonged to Jackie
Williams. After returning to the mobile-home park, Scheuing
retrieved his belongings and began his drive to Grand Rapids.

"Investigators were able to lift fingerprints from the
counter of the Pak-a-Sak store, and one of those fingerprints
belonged to Scheuing. After the story of the robbery-murder
was televised during the local news, investigators received a
tip informing them that Scheuing had been with Potts and of
type of vehicle Potts drove. Based on that information,
investigators went to Potts's mobile home and received
permission from him to search his vehicle and mobile home.
While searching Potts's car, investigators located a black and
red jacket that matched the one worn by Scheuing when he
shot Cook. Inside Potts's mobile home, investigators found a
hat matching the one Scheuing had worn while he was inside
the Pak-a-Sak store. They also located a receipt from
Walmart store that was generated shortly after the robbery
and murder. The investigators went to the Walmart store and
were able to secure a video showing Potts and Scheuing in the
store purchasing the Xbox 360 and video-game cartridges.
The cash-register drawer was recovered when a citizen, who
lived on a dead-end road, reported that he had found it near
his driveway.

"When he got to Michigan, Scheuing went to meet the
woman with whom he had communicated in the Internet chat
room. She told him that because officers had contacted her
and told her what he had done, she did not want anything to

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do with him. Thereafter, Scheuing left. While still in
Michigan, Scheuing swapped the license plate on the Yukon
with one on a truck parked at a Days Inn hotel. He then drove
west into Iowa.

"In Iowa, Scheuing stole Glenda Palmer's purse at a
Walmart store but, before Scheuing was able to leave the
parking lot, another person opened the passenger door of the
Yukon and took back the purse. Scheuing ran out of gas on
an interstate highway and began walking. While doing so,
Scheuing convinced people to give him money on three
separate occasions. On December 4, 2008, Scheuing used the
money to buy a bus ticket to St. Louis, Missouri, which was as
far as he could afford to travel with the money the people had
given him, and he rented a room at the Red Carpet Inn motel
in Knoxville, Iowa. The employee of the motel who rented the
room to Scheuing had seen a story about him on the evening
news and telephoned law enforcement. Scheuing was
apprehended that afternoon.

"The next day, Special Agent Adam DeCamp and
Special Agent Don Schnitker of the Iowa Division of Criminal
Investigations interviewed Scheuing after he waived his
Miranda rights. During the first part of the interview,
Scheuing told Agent DeCamp and Agent Schnitker that he
alone decided to rob a store to get money to buy Potts an Xbox
360 and to get money he could use to go to Michigan. He told
the agents that he had taken Potts's vehicle without Potts's
knowledge and had driven to the store. Scheuing detailed his
time inside the Pak-a-Sak store, including how he had shot
Cook, and told them that after he had disposed of the gun,
ammunition, and cash-register drawer, he went back to
Potts's house where he woke up Potts and told him that he
was giving the money to him as a gift without telling him its
source. The two of them, Scheuing said, then went to a
Walmart store where they bought the video-game console and
video-game cartridges. Scheuing further stated that he told

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CR-2022-0684

Potts what he had done to get the money only after Cook's
brother had threatened Potts.

"During a break in the interview, the agents contacted
investigators in Alabama and relayed to them the story
Scheuing had given. When the interview resumed, the agents
confronted Scheuing with the fact that they knew he was not
telling the truth. Scheuing then told the truth about Potts's
involvement in the crime.

"Following his extradition back to Alabama, Officer
Michael Kane of the Weaver Police Department spoke with
Scheuing about the theft of the Yukon. After he had executed
a waiver-of-rights form, Scheuing wrote a statement for
Officer Kane. In his statement Scheuing wrote that, around
8:00 p.m. on an 'unknown date,' he stole a silver Yukon and
drove to Grand Rapids, Michigan. (State's Exhibit 34.) He
further wrote that he then drove to Iowa where he 'eventually
ran out of gas and left the vehicle on the entry ramp to the
interstate.' (State's Exhibit 34.) Scheuing also wrote that,
before he had left Calhoun County, Alabama, he had taken
the Yukon to an abandoned mobile-home park to get clothes
he had left. In the mobile-home park, he left 'most of the
personal effects' that had been in the Yukon. (State's Exhibit
34.) Scheuing concluded the statement by writing that he had
'donated the clothes in the vehicle to Mel Trotters (sic)
ministries.' (State's Exhibit 34.)

"Officer Kane informed Lieutenant Charles Plitt of the
Weaver Police Department of the information Scheuing had
provided. Lt. Plitt went to a vacant mobile-home park in
Weaver where the remains of an abandoned mobile home still
stood. This place was known to him as a place where people
hid and disposed of stolen property. At the driveway of that
mobile home, he found Williams's purse and other items.

" ....

8
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"The autopsy of Cook's body was performed by Dr.
Valerie Green, a state medical examiner with the Alabama
Department of Forensic Sciences. Dr. Green determined that
Cook had a gunshot entrance wound 'right in the center of the
forehead.' (R. 596.) … She concluded that the cause of death
was the 'gunshot wound to the head' and that the manner of
death was homicide. (R. 620.)

"The bullet was examined by Dancy Sullivan, a forensic
scientist with the Alabama Department of Forensic Sciences.
Based on her examination of the bullet, Sullivan concluded
that the 'bullet was a .38 caliber class bullet loaded in [a] .38
Special caliber cartridge[].' (R. 816.) Sullivan expected that
the bullet would have been fired by a 'Smith & Wesson or
similar .38 Special caliber firearm[] or Ruger, Smith &
Wesson, Taurus, or similar .357 caliber firearm[].' (R. 816.)"

Scheuing v. State, 161 So. 3d 245, 252-57 (Ala. Crim. App. 2013)

(footnotes omitted).

In March 2009, a grand jury indicted Scheuing for capital murder

for killing Cook during the course of a first-degree robbery, a violation of

§ 13A-5-40(a)(2), Ala. Code 1975, and for first-degree theft of the sport-

utility vehicle, a violation of § 13A-8-3, Ala. Code 1975. Following his

September 2010 trial, the jury found Scheuing guilty of both offenses. As

to his capital-murder conviction, the jury -- after unanimously finding

beyond a reasonable doubt the existence of one aggravating circumstance

9
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-- recommended by a vote of 10 to 2 that Scheuing be sentenced to death.1

The trial court followed the jury's recommendation and sentenced

Scheuing to death. As to his theft conviction, the trial court sentenced

Scheuing, as a habitual felony offender, to 60 years' imprisonment.

On direct appeal, this Court affirmed Scheuing's convictions and

sentences. See Scheuing, 161 So. 3d 245. After the Alabama Supreme

Court denied his petition for a writ of certiorari, this Court issued a

certificate of judgment on September 19, 2014. On September 15, 2015,

Scheuing timely filed a Rule 32 petition challenging his convictions and

sentences.

Over the next five years, Scheuing amended his petition three

times. The State moved to dismiss his petition and each amendment

thereto. On April 1, 2022, the circuit court issued a 65-page order

dismissing Scheuing's petition. Scheuing then moved the circuit court to

1This Court's opinion on direct appeal says that the jury
"recommended, by a vote of 10 to 2, that [Scheuing] be sentenced to life
in prison without the possibility of parole." Scheuing, 161 So. 3d at 252.
The record on direct appeal (of which we take judicial notice of in this
case), however, shows that the jury recommended that Scheuing be
sentenced to death by a vote of 10 to 2. (See Record in CR-10-1454, C. 5,
79, and 96.)
10
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reconsider its judgment. The circuit court did not rule on Scheuing's

motion. This appeal follows.

Standard of Review

It is well settled that a circuit court may summarily dismiss a Rule

32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

"[i]f the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or that no
material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would
be served by any further proceedings...."

See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);

Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.

State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992). When this Court

reviews a circuit court's summary dismissal of a postconviction petition,

the standard we use " 'is whether the [circuit] court abused its

discretion.' " Lee v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009)

(quoting Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005)). If

the circuit court bases its decision on a " cold trial record," however, we

apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 353

(Ala. 2012). "[W]hen reviewing a circuit court's rulings made in a

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postconviction petition, we may affirm a ruling if it is correct for any

reason." Bush v. State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009).

As explained below, the circuit court summarily dismissed some of

Scheuing's claims because they were without merit or because they

simply failed to state a claim for relief. Some of Scheuing's claims,

however,

"were summarily dismissed based on defects in the pleadings
and application of the procedural bars in Rule 32.2, Ala. R.
Crim. P. When discussing the pleading requirements for
postconviction petitions, we have stated:

" 'The burden of pleading under Rule 32.3
and Rule 32.6(b) is a heavy one. Conclusions
unsupported by specific facts will not satisfy the
requirements of Rule 32.3 and Rule 32.6(b). The
full factual basis for the claim must be included in
the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court
cannot determine whether the petitioner is
entitled to relief, the petitioner has not satisfied
the burden of pleading under Rule 32.3 and Rule
32.6(b). See Bracknell v. State, 883 So. 2d 724
(Ala. Crim. App. 2003).'

"Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).

" ' "Rule 32.6(b) requires that the petition
itself disclose the facts relied upon in seeking
relief." Boyd v. State, 746 So. 2d 364, 406 (Ala.
Crim. App. 1999). In other words, it is not the
pleading of a conclusion "which, if true, entitle[s]
the petitioner to relief." Lancaster v. State, 638

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So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the
allegation of facts in pleading which, if true, entitle
a petitioner to relief. After facts are pleaded,
which, if true, entitle the petitioner to relief, the
petitioner is then entitled to an opportunity, as
provided under Rule 32.9, Ala. R. Crim. P., to
present evidence proving those alleged facts.'

"Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).
'[T]he procedural bars of Rule 32[.2, Ala. R. Crim. P.,] apply
with equal force to all cases, including those in which the
death penalty has been imposed.' Burgess v. State, 962 So. 2d
272, 277 (Ala. Crim. App. 2005)."

Washington v. State, 95 So. 3d 26, 38-39 (Ala. Crim. App. 2012).

Furthermore, "the plain-error standard of review does not apply when an

appellate court is reviewing the denial of a postconviction petition

attacking a death sentence." James v. State, 61 So. 3d 357, 362 (Ala.

Crim. App. 2010) (citing Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001)).

Before we turn to Scheuing's arguments on appeal, we note that the

Alabama Rules of Appellate Procedure are clear: in his or her brief to this

Court, an appellant must present this Court with an adequate argument

"containing the contentions of the appellant/petitioner with respect to the

issues presented, and the reasons therefor, with citations to the cases,

statutes, other authorities, and parts of the record relied on." Rule

28(a)(10), Ala. R. App. P. As the State points out in its brief to this Court,

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nowhere in Scheuing's brief to this Court does he actually address the

circuit court's reasons for dismissing the claims he raised in his Rule 32

petition.2 Instead, Scheuing merely restates the allegations that he

raised in his petition. We have held that,

"when a petitioner merely restates allegations that he or she
raised in a Rule 32 petition without explaining to this Court
how the circuit court erred by providing this Court with
citations to legal authority supporting those arguments, that
petitioner has not satisfied Rule 28(a)(10), Ala. R. App. P., and
his or her claims are deemed abandoned and waived. See,
e.g., Calhoun v. State, 261 So. 3d 457, 472-73 (Ala. Crim. App.
2016) (holding that Calhoun failed to 'adequately argue' his
claims on appeal because he 'merely restate[d] these
allegations from his petition,' argued that the allegations in
his petition showed that his counsel was ineffective, and failed
to cite 'legal authority to support these contentions')."

Travis v. State, [Ms. CR-18-0973, Mar. 24, 2023] ___ So. 3d ____, ____

(Ala. Crim. App. 2023). Although the State asserts on numerous

occasions in its brief on appeal that Scheuing has waived his arguments

by failing to comply with Rule 28(a)(10), Scheuing does not attempt to

contest these assertions by the State in his reply brief. We address

2Scheuing mentions the circuit court's order only once in his brief.

(See Scheuing's brief, p. 6 (noting in his "Statement of the Case" that the
circuit court dismissed his petition on April 1, 2022).)
14
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Scheuing's arguments on appeal including addressing when his claims

fail to satisfy Rule 28(a)(10), Ala. R. App. P.

Discussion

On appeal, Scheuing argues that his counsel were ineffective during

the guilt and penalty phases of his trial. (Scheuing's brief, pp. 9-51.)

Scheuing also argues that the trial court failed to find his "severe mental

illness as a mitigating circumstance and to consider other mental-health

evidence as mitigating" and that the trial court failed "to consider [his]

youth and undeveloped brain as nonstatutory mitigating factors when

weighing … the aggravating circumstances of the crime against [his]

mitigating circumstances." (Scheuing's brief, pp. 51-52.) Finally,

Scheuing raises claims concerning the application of the death penalty to

him. (Scheuing's brief, pp. 53-76.) We address each argument in turn.

I. Ineffective Assistance of Counsel

"As we have often stated:

" ' "To prevail on a claim of
ineffective assistance of counsel, the
petitioner must show (1) that counsel's
performance was deficient and (2) that
the petitioner was prejudiced by the
deficient performance. See Strickland
v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).

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" ' " 'Judicial scrutiny
of counsel's performance
must be highly deferential.
It is all too tempting for a
defendant to second-guess
counsel's assistance after
conviction or adverse
sentence, and it is all too
easy for a court, examining
counsel's defense after it
has proved unsuccessful, to
conclude that a particular
act or omission of counsel
was unreasonable. A fair
assessment of attorney
performance requires that
every effort be made to
eliminate the distorting
effects of hindsight, to
reconstruct the
circumstances of counsel's
challenged conduct, and to
evaluate the conduct from
counsel's perspective at the
time. Because of the
difficulties inherent in
making the evaluation, a
court must indulge a strong
presumption that counsel's
conduct falls within the
wide range of reasonable
professional assistance;
that is, the defendant must
overcome the presumption
that, under the
circumstances, the
challenged action "might be

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considered sound trial
strategy." There are
countless ways to provide
effective assistance in any
given case. Even the best
criminal defense attorneys
would not defend a
particular client in the
same way.'

" ' "Strickland, 466 U.S. at 689, 104 S.
Ct. 2052.

" ' " '[T]he purpose of
ineffectiveness review is not
to grade counsel's
performance. See
Strickland [v. Washington],
[466 U.S. 668,] 104 S. Ct.
[2052] at 2065 [80 L. Ed. 2d
674] [(1984)]; see also White
v. Singletary, 972 F.2d
1218, 1221 (11th Cir. 1992)
("We are not interested in
grading lawyers’
performances; we are
interested in whether the
adversarial process at trial,
in fact, worked
adequately."). We recognize
that "[r]epresentation is an
art, and an act or omission
that is unprofessional in
one case may be sound or
even brilliant in another."
Strickland, 104 S. Ct. at
2067. Different lawyers
have different gifts; this

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fact, as well as differing
circumstances from case to
case, means the range of
what might be a reasonable
approach at trial must be
broad. To state the obvious:
the trial lawyers, in every
case, could have done
something more or
something different. So,
omissions are inevitable.
But, the issue is not what is
possible or "what is prudent
or appropriate, but only
what is constitutionally
compelled." Burger v.
Kemp, 483 U.S. 776, 107 S.
Ct. 3114, 3126, 97 L. Ed. 2d
638 (1987).'

" ' "Chandler v. United States, 218 F.3d
1305, 1313-14 (11th Cir. 2000)
(footnotes omitted).

" ' "...."

" '....

" 'We also recognize that when reviewing
claims of ineffective assistance of counsel "the
performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law
and fact." Strickland v. Washington, 466 U.S. 668,
698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).'

"Marshall v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App.
2014)."

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Peraita v. State, 386 So. 3d 799, 829-30 (Ala. Crim. App. 2021).

Additionally, when a Rule 32 petition alleges that counsel was ineffective,

that claim must be sufficiently pleaded. We have summarized the

pleading standard for such claims as follows:

" 'In Hyde v. State, 950 So. 2d 344 (Ala. Crim.
App. 2006), this Court explained ... :

" ' "The burden of pleading under
Rule 32.3 and Rule 32.6(b) is a heavy
one.... To sufficiently plead an
allegation of ineffective assistance of
counsel, a Rule 32 petitioner not only
must 'identify the [specific] acts or
omissions of counsel that are alleged
not to have been the result of
reasonable professional judgment,'
Strickland v. Washington, 466 U.S.
668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984), but also must plead specific
facts indicating that he or she was
prejudiced by the acts or omissions, i.e.,
facts indicating 'that there is a
reasonable probability that, but for
counsel's unprofessional errors, the
result of the proceeding would have
been different.' 466 U.S. at 694, 104 S.
Ct. 2052. A bare allegation that
prejudice occurred without specific
facts indicating how the petitioner was
prejudiced is not sufficient."

" '950 So. 2d at 356.'

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"Mashburn v. State, 148 So. 3d 1094, 1105-07 (Ala. Crim. App.
2013). Even if a claim of ineffective assistance of counsel is
sufficiently pleaded, however, counsel is not ineffective for
failing to raise a meritless claim. Carruth v. State, 165 So. 3d
627, 645 (Ala. Crim. App. 2014)."

Brooks v. State, 340 So. 3d 410, 442 (Ala. Crim. App. 2020). With these

principles in mind, we turn to Scheuing's claims of guilt-phase and

penalty-phase ineffective assistance of counsel.

I.A. Guilt-Phase Claims

I.A.1.

Scheuing first argues that his trial counsel were ineffective for

"fail[ing] to move for dismissal [of his case] based on speedy trial

grounds." (Scheuing's brief, p. 13.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective for failing "to move for dismissal [of his case] based on

speedy trial grounds." (C. 839.) Scheuing claimed that the 21-month

delay between his pretrial detention and his trial was presumptively

prejudicial; that the delay "was the result of actions taken by the

prosecution" and "[t]he prosecution never explained the delay"; that he

suffered prejudice because he experienced "stress and anxiety" during his

pretrial incarceration and "lost contact with close friends who comprised

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his support system," which, he says, "directly impacted his ability to

defend himself" and that, if his counsel had acted effectively, he would

have asserted his right to a speedy trial. (C. 840-41.) Scheuing also

alleged that he was prejudiced by his counsel's failure to move to dismiss

his case on speedy-trial grounds because, he said:

"Had trial counsel moved to dismiss the case, there is a
reasonable possibility that [he] would not have been convicted
and sentenced to death. As discussed above, [he] had a strong
case for dismissal based on speedy-trial grounds. If counsel
had filed the motion, the Court would have granted it, and
[he] would not have faced a trial, convictions, or a death
sentence."

(C. 842.)

The circuit court dismissed this claim, finding that "Scheuing

raised the issue underlying this ineffectiveness claim on direct appeal,

and the Alabama Court of Criminal Appeals held that 'Scheuing has

failed to establish that a violation of his right to a speedy trial occurred,

much less that the circuit court committed plain error by failing to notice

one.' " (C. 1221 (quoting Scheuing, 161 So. 3d at 291).) The circuit court

further found that, although a finding of no plain error on direct appeal

does not preclude Scheuing from arguing in his petition that his counsel's

failure prejudiced him, Scheuing failed to sufficiently plead his claim and

21
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failed "to plead any facts in his petition to dispute" this Court's holding

on direct appeal. (C. 1222.)

In his brief on appeal, Scheuing reasserts the claim he raised in his

petition without addressing the circuit court's basis for summarily

dismissing his claim or explaining how the circuit court's decision is

incorrect. Because Scheuing failed to present this Court with any

argument showing how the circuit court erred when it summarily

dismissed this claim of ineffective assistance of counsel, Scheuing's

argument on appeal does not comply with Rule 28(a)(10), Ala. R. App. P.,

and " 'constitute[s] a waiver of the underlying postconviction claim.' "

Wimbley v. State, 387 So. 3d 213, 231 (Ala. Crim. App. 2022) (quoting

Woodward v. State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018)).

Even if Scheuing had not waived this argument, the circuit court

properly dismissed this claim. As the circuit court explained in its order

dismissing Scheuing's petition, this Court, in Scheuing's direct appeal,

addressed the merits underlying his claim that his counsel were

ineffective for failing to move to dismiss his case on speedy-trial grounds.

In his direct appeal, Scheuing argued, just as he does in his third

amended petition, "that the 'delay of over 21 months in the prosecution

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of Mr. Scheuing denied him his right to a speedy trial.' " Scheuing, 161

So. 3d at 288. Scheuing claimed in his direct appeal that the length of

pretrial delay was presumptively prejudicial and that he suffered

prejudice from the delay because he had "suffered anxiety and emotional

stress." Id. at 288-91. This Court, reviewing his claim for plain error

under Rule 45A, Ala. R. App. P., examined the factors set out in Barker

v. Wingo, 407 U.S. 514 (1972), and rejected Scheuing's speedy-trial

argument.

This Court held that, contrary to Scheuing's argument on appeal, a

21-month delay in a capital-murder trial is not "presumptively

prejudicial." Scheuing, 161 So. 3d at 288 ("Although Scheuing argues

that the 21-month delay between his arrest and the beginning of his trial

is presumptively prejudicial, this Court does not agree."). Thus, there

was no violation of Scheuing's right to a speedy trial. This Court

nonetheless addressed the remaining Barker factors and held that the

record showed that the 21-month delay "was neither deliberately nor

negligently caused by the State"; that Scheuing never asserted his right

to a speedy trial; and that, "[a]lthough Scheuing asserts that, due to the

delay, 'he suffered from anxiety and emotional stress' …, no evidence

23
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supporting that assertion appears in the record" and, thus, he "failed to

establish prejudice as a result of any delay." Id. Ultimately, this Court

concluded that "Scheuing has failed to establish that a violation of his

right to a speedy trial occurred, much less that the circuit court

committed plain error by failing to notice one." Id. at 291. In other words,

this Court held that there was no error, much less plain error, resulting

from the delay between Scheuing's arrest and his trial.

Because this Court held in Scheuing's direct appeal that a 21-

month delay between an arrest and a trial in a capital-murder case is not

presumptively prejudicial, and, that if it were, the remaining Barker

factors do not establish a speedy-trial violation, the circuit court did not

err when it summarily dismissed this claim. See, e.g., Carruth v. State,

165 So. 3d 627, 645 (Ala. Crim. App. 2014) (holding that counsel "were

not ineffective for failing to raise a baseless objection").

I.A.2.

Next, Scheuing argues that his counsel were ineffective for "fail[ing]

to challenge for cause jurors who testified that they could not give

undivided attention to [his] trial proceedings." (Scheuing's brief, p. 14.)

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In his third amended petition, Scheuing raised this same claim and

specifically asserted that veniremembers C.W. and M.Z. both "indicated

that they would not be able to give their complete attention to the

evidence offered in this capital case," that his trial counsel "did not move

to strike either veniremember for cause," and that both C.W. and M.Z.

"ended up serving on the jury." (C. 842-43.)

The circuit court summarily dismissed Scheuing's claim for two

reasons. First, the circuit court found that Scheuing had argued in his

direct appeal that "the circuit court erred by failing to sua sponte remove

veniremembers C.W. and M.Z." and this Court held

"that the statutory grounds for which a veniremember may be
struck for cause 'do not include a juror who would not be able
to give his complete attention to the trial' and that '[t]he
veniremember's responses do not appear to rise to the level of
a strike for cause, and the circuit court did not commit plain
error by failing to remove them without any motion from
defense counsel.' "

(C. 1223-24.) The circuit court held that, because "the veniremembers'

responses would not have supported a challenge for cause, Scheuing's

trial counsel were not ineffective for failing to make one." (C. 1224.)

Second, the circuit court found that Scheuing's claim that C.W. and

M.Z. both had served on his jury was "directly refuted by the record"

25
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because the "State used its sixth peremptory strike to remove M.Z. from

the jury, and … Scheuing's trial counsel used its twelfth peremptory

strike to remove C.W. from the jury." (C. 1224 (citations omitted).) The

circuit court held that, because "the record proves that neither C.W. nor

M.Z. actually served on the jury, Scheuing cannot prove that his counsel's

performance was deficient and that he was prejudiced by his counsel's

failure to request that they be struck for cause." (C. 1224.)

The totality of Scheuing's argument on appeal is as follows:

"During voir dire, veniremembers C.W. and M.Z. both
responded affirmatively to the following inquiry:

" 'You may be sitting here thinking, hey,
what's happening with my business or my family
or any other number of issues. And you may not
be able to give me or the defense your complete
attention. I won't ask you why, but is there
anybody that fits that category, there's other
things that you need to be doing other than sitting
here?'

"(R. 405.)

"Even though they indicated that they would not be able
to give their complete attention to the evidence offered in this
capital case, defense counsel did not move to strike either
veniremember for cause. Both veniremembers served on the
jury. Applicable professional standards also reinforce trial
counsel's obligation to strike 'prospective jurors who are
unable to give meaningful consideration' to the evidence
presented at trial. ABA Guideline 10.10.2.

26
CR-2022-0684

"A criminal defendant in a jury trial is entitled to a fair
and impartial jury. (Morgan v. Illinois, 504 U.S. 719 (1992),
Duncan v. Louisiana, 391 U.S. 145 (1968).), see also Irvin v.
Dowd, 366 U.S. 717, 722 (1961)."

(Scheuing's brief, pp. 14-15.)

In making his argument on appeal, Scheuing merely reiterates the

claim he raised in his amended Rule 32 petition without addressing the

circuit court's judgment or explaining how the circuit court erred when it

dismissed this claim and ignoring the circuit court's finding that M.Z. and

C.W. did not serve on the jury. In fact, as the State correctly points out

in its brief on appeal, Scheuing "does not even mention the court's final

order ... or cite this Court to the portion of the appellate record where the

court addressed this claim." (State's brief, p. 12.) Again, this Court has

held that similar failures of argument render an appellate brief

noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward v.

State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018) (holding that

Woodward's argument on appeal did not satisfy Rule 28(a)(10), Ala. R.

App. P., and was, therefore, deemed waived when he "reassert[ed] this

claim from his petition, but he ma[de] no argument regarding why he

27
CR-2022-0684

believe[d] the circuit court's findings were incorrect"). Because

Scheuing's argument does not comply with Rule 28(a)(10), Ala. R. App.

P., he has waived his argument.

Even if Scheuing had not waived this claim, however, the circuit

court properly dismissed this claim. As the circuit court noted in its order

dismissing this claim, this Court in Scheuing's direct appeal concluded

that neither C.W.'s nor M.Z.'s responses during voir dire "rise to the level

of a strike for cause, and the circuit court did not commit plain error by

failing to remove them without any motion from defense counsel."

Scheuing, 161 So. 3d at 291. Although " 'a determination on direct appeal

that there has been no plain error does not automatically foreclose a

determination of the existence of the prejudice required under Strickland

to sustain a claim of ineffective assistance of counsel,' " "it is 'the rare case

in which the application of the plain-error test and the prejudice prong of

the Strickland test will result in different outcomes.' " Bohannon v. State,

[Ms. CR-21-0148, Aug. 18, 2023] ___ So. 3d ___, ___ (Ala. Crim. App. 2023)

(quoting Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005)). Although

Scheuing alleged that his counsel were ineffective for failing to move to

strike for cause C.W. and M.Z., Scheuing failed to plead any facts in his

28
CR-2022-0684

petition to dispute this Court's holding on direct appeal that their

responses did not rise to the level to support a strike for cause; thus, he

failed to show why this claim was one of the "rare" claims mentioned in

Ex parte Taylor, supra, where the application of the plain-error standard

and the prejudice prong of Strickland will result in different outcomes.

On appeal, he also failed to challenge the trial court's finding that neither

of the complained-of prospective jurors served on the jury. If neither of

the individuals served on the jury then Scheuing would be unable to

establish any prejudice. Thus, the circuit court properly dismissed this

claim, and Scheuing is not entitled to relief on this claim.

I.A.3.

Scheuing argues that his counsel were ineffective for "fail[ing] to

challenge the prosecution's discriminatory peremptory strikes during

jury selection" when the prosecution "improperly struck a

disproportionate number of female venire members in violation of J.E.B.

v. Alabama, 511 U.S. 127 (1994)." (Scheuing's brief, p. 15.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective for failing to raise an objection under J.E.B. v. Alabama,

511 U.S. 127 (1994), because, he said, the State "used sixty-eight percent

29
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of its peremptory strikes to remove female veniremembers from the jury,"

"the group of women struck shared only their gender in common," and

"the disparate treatment of men and women on the venire gave rise to an

inference of discrimination." (C. 844-45.)

The circuit court summarily dismissed this claim because

"Scheuing raised the issue underlying this ineffectiveness claim on direct

appeal, and the Court of Criminal Appeals held that, under the

circumstances, 'this Court cannot say that the State's use of 23 of 34

peremptory strikes to remove female veniremembers raises an inference

of discrimination.' " (C. 1225.) The circuit court also found that Scheuing

failed "to plead any specific facts in his petition that would call the Court

of Criminal Appeals' holding into question." (C. 1225.)

The totality of Scheuing's argument on appeal is as follows:

"During the culpability phase, the State improperly
struck a disproportionate number of female venire members
in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994). Where
the Record establishes a prima facie showing of gender
discrimination, a hearing must be held, and the prosecution
must provide gender-neutral reasons for the strikes. See ibid;
Ex parte Trawick, 698 So. 2d 162, 167-68 (Ala. 1997)
(relevant factors to establish a prima facie case under Batson
[v. Kentucky, 476 U.S. 79 (1986),] apply to claims of gender
discrimination). No hearing was held because trial counsel
failed to object. He lifted the burden from the state to present

30
CR-2022-0684

gender-neutral reasons for its peremptory strikes. Eagle v.
Linahan, 279 F.3d 926 (11th Cir. 2001).

"Here, the prosecution used sixty-eight percent of its
peremptory strikes to remove female veniremembers from the
jury, resulting in a jury that was thirty-three percent female
despite women comprising nearly half the venire. This alone
provided grounds for counsel to object based on an inference
of discrimination. See Davis v. Ayala, 135 U.S. 2187, 2200-01
(2015), Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005); see
also Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987) (use of
67% of peremptory strikes against a particular group could
raise an inference of discrimination). Trial counsel’s failure
to object constituted ineffectiveness in light of the State's
intentional attempt to circumvent Mr. Scheuing's
constitutional rights."

(Scheuing's brief, pp. 15-16.)

Scheuing merely recites the claim he raised in his amended Rule 32

petition without addressing the circuit court's judgment or explaining

how the circuit court erred when it dismissed his claim. Again, Scheuing

"does not even mention the court's final order ... or cite this Court to the

portion of the appellate record where the court addressed this claim."

(State's brief, p. 14.)

As the circuit court correctly noted in its dismissal of Scheuing's

claim, this Court addressed the substantive issue underlying Scheuing's

claim of ineffective assistance of counsel and held that Scheuing was "not

entitle[d] … to any relief" on his J.E.B. claim because "this Court cannot

31
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say that the State's use of 23 of its 34 peremptory strikes raises an

inference of discrimination"; because Scheuing "has not established that

the women struck by the State were heterogeneous"; and because he

"failed to establish that the State treated men and women differently."

Scheuing, 161 So. 3d at 285-87. Because this Court in Scheuing's direct

appeal concluded that the exact arguments he says his counsel were

ineffective for failing to raise at trial do "not raise an inference that the

State used its peremptory strikes in a manner that discriminated against

women," id., Scheuing's claim of ineffective assistance of counsel is

without merit. Scheuing continues to rely upon an assertion that the

percentage of women struck by the State was higher than the percentage

of women in the venire, but "[t]his Court has repeatedly held that a prima

facie case of discrimination under Batson [and J.E.B.] cannot be

established on numbers alone." Largin v. State, [Ms. CR-20-0228, Dec.

16, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022).

Based on the foregoing, the circuit court did not err when it

summarily dismissed this claim.

32
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I.A.4.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the State's characterization that it was representing the victim

and his family, which it repeated throughout the proceedings."

(Scheuing's brief, p. 16.)

In his third amended petition, Scheuing alleged that "throughout

the proceedings" the State "repeatedly mischaracterized its role and the

nature of the proceedings by asserting that it represented the victim,"

and his counsel failed to object to the State's "improper assertions." (C.

850.) Specifically, Scheuing alleged that the State made such an

improper assertion on three occasions: (1) during voir dire when it told a

jury panel that it "represent[s] the victims, Sean Cook and Jacqueline

Williams" (Record in CR-10-1454, R. 220); (2) during voir dire when it

told a different jury panel that it "represent[s] Sean Cook who can't be

here because he's dead" and that it is "his voice and [it's] going to

represent him throughout this trial" (Record in CR-10-1454, R. 294); and

(3) during voir dire when it told yet another jury panel that it

"represent[s] Sean Cook. And he's dead, and he can't be here
today. So I'm going to ask every question I can legally ask to
find out everything I can find out about you so that when I put
you in the box I can assure his mom that he's going to get a

33
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fair trial, that his alleged murderer is going to have a fair jury
listening to the evidence."

(Record in CR-10-1454, R. 381.) Scheuing claimed that he was prejudiced

by his counsel's failure to object to the complained-of statements because

the "statements were highly prejudicial" and

"gave the jury an inaccurate perception of the prosecution's
relationship to the victim, coloring with improper sympathies
and passions the lens through which the jury viewed all
aspects of the trial. Had trial counsel objected, the trial court
would have prevented the prosecution from misrepresenting
its role, and the prosecution would have been a normal
litigant instead of a member of the victim's legal team. The
jury would have viewed the case without the improper
sympathies and passions associated with a victim; it would
have been a detached, neutral decisionmaker instead. Given
the dearth of information about [his] horrible childhood and
the resulting mental-health problems that ensued, there is a
reasonable likelihood that a detached, neutral decisionmaker
would not have convicted him of capital murder or sentenced
him to death."

(C. 851.)

The circuit court dismissed this claim because "he raised this

underlying claim on direct appeal, and the Alabama Court of Criminal

Appeals held that 'the record demonstrates that the prosecutor's

references to representing and speaking for the victims were limited and

brief' "; thus, this Court held " 'that the prosecutor's comments did not rise

to the level of plain error.' " (C. 1161 (quoting Scheuing, 161 So. 3d at

34
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287-88).) The circuit court, while acknowledging that "a finding of no

plain error on direct appeal does not foreclose Scheuing from arguing that

he was prejudiced by his trial counsel's failure to object to the prosecutor's

comments," concluded that "Scheuing failed to plead any specific facts in

his petition that, if true, would establish that his is a 'rare case.' " (C.

1161-62.)

On appeal, Scheuing does not challenge the circuit court's

judgment. Rather, Scheuing's two-paragraph argument consists of a

restatement of the allegations he raised in his petition with citations to

two cases -- one being a citation to a concurring opinion -- that notes that

a prosecutor represents the sovereign and not a party. (Scheuing's brief,

pp. 16-17.) Like previous claims addressed above, Scheuing does not

mention the circuit court's order as to this claim, nor does he make any

argument as to why the circuit court erred when it summarily dismissed

this claim. Again, this Court has held that similar failures of argument

do not comply with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746 (holding that Woodward's argument on appeal did not

satisfy Rule 28(a)(10), Ala. R. App. P., and was, therefore, deemed waived

35
CR-2022-0684

when he "reassert[ed] this claim from his petition, but he ma[de] no

argument regarding why he believe[d] the circuit court's findings were

incorrect"). Furthermore, Scheuing cites caselaw indicating that

prosecutors represent the State, not the individual, but he does not

provide this Court with argument that the assertions of the prosecutor

were overarching during the trial or any caselaw indicating that the

assertions in this case were sufficiently prejudicial to warrant relief.

Because Scheuing's argument does not comply with Rule 28(a)(10), Ala.

R. App. P., he has waived his argument.

Even had the argument not been waived, his claim is without merit.

As the circuit court explained in its order dismissing this claim, this

Court, on direct appeal, addressed the same complained-of comments

underlying Scheuing's claim of ineffective assistance of counsel as

follows:

"In Johnson v. State, 120 So. 3d 1130 (Ala. Crim. App.
2009), this Court addressed a similar argument and stated:

" 'This Court has held that a prosecutor's
comments that he or she represented or spoke for
the victim's family is not erroneous. "We have held
that it is not reversible error for a prosecutor to
suggest that he is speaking on behalf of the
victim's family. See Slaton v. State, 680 So. 2d
879, 906-07 (Ala. Crim. App. 1995), aff'd, 680 So.

36
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2d 909 (Ala. 1996), cert. denied, 519 U.S. 1079, 117
S. Ct. 742, 136 L. Ed. 2d 680 (1997)." Burgess v.
State, 723 So. 2d [742] at 754 [(Ala. Crim. App.
1997)].'

"Johnson, 120 So. 3d at 1190. In Slaton, this Court instructed
that it is not 'reversible error when the prosecutor briefly
suggests that he is speaking on behalf of the victim's family.'
Slaton v. State, 680 So. 2d 879, 906 (Ala. Crim. App. 1995)
(citing Henderson v. State, 583 So. 2d 276, 286 (Ala. Crim.
App. 1990)).

"In this case, the record demonstrates that the
prosecutor's references to representing and speaking for the
victims were limited and brief. This Court, therefore, holds
that the prosecutor's comments did not rise to the level of
plain error. See Rule 45A, Ala. R. App. P."

Scheuing, 161 So. 3d at 287-88.

Although this Court reviewed Scheuing's argument for plain error

and held that Scheuing's claim did not rise of the level of plain error, this

Court has held:

" '[A] determination on direct appeal that there has been
no plain error does not automatically foreclose a
determination of the existence of the prejudice required under
Strickland to sustain a claim of ineffective assistance of
counsel.' Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005).
However, it is 'the rare case in which the application of the
plain-error test and the prejudice prong of the Strickland test
will result in different outcomes,' Ex parte Taylor, 10 So. 3d
at 1078, and this is not such a case."

Bohannon, ___ So. 3d at ____.

37
CR-2022-0684

As this Court noted in Scheuing's direct appeal, the prosecutor's

comments during voir dire were "limited and brief," and such comments

are simply not reversible error. Thus, there was no basis for Scheuing's

counsel to object to the complained-of comments because an objection

would have been baseless. What is more, as the circuit court noted in its

order dismissing this claim, Scheuing failed to plead any facts showing

that this claim was one of the "rare" claims mentioned in Ex parte Taylor,

supra, where the application of the plain-error standard and the

prejudice prong of Strickland will result in different outcomes.

I.A.5.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate and present a defense during the culpability

phase of [his] trial." (Scheuing's brief, p. 17.)

In his third amended petition, Scheuing alleged that his trial

counsel "were deficient for failing to investigate the reasons that [he]

committed the murder and ensured that he would be convicted." (C. 853.)

According to Scheuing, Potts and Kulp "wanted to break away from their

lives of drugs and crime to start a normal family" and they "needed help."

(C. 853-54.) Scheuing alleged that Potts and Kulp had "tried to distribute

38
CR-2022-0684

'crystal meth' and incurred a large debt to" Cook and that Cook "would

not give the couple any more time to pay." (C. 854.) Scheuing said that

he agreed to take on the couple's debt himself but he "could not make the

money needed to pay the debt either." (C. 854.) So, he said, he "went to

talk with Mr. Cook again, hoping that he would agree to more-reasonable

repayment terms," but "Cook did not, so Mr. Scheuing shot him." (C.

854.) Scheuing alleged that, "to protect" Potts, "[h]e took the cash

register to make it look like an open-and-shut murder during the course

of a robbery" and "gave the money to the new family as a wedding gift

and assured them that he would confess that he did it for a robbery if

caught." (C. 854.) Scheuing alleged that his counsel "had no reasonable

excuse to not investigate these details." (C. 855.) As for prejudice,

Scheuing claimed that if "the jury understood the true reasons that [he]

killed Mr. Cook and later confessed to it, they may have spent more than

twenty-nine minutes deliberating his guilt." (C. 855.)

The circuit court summarily dismissed this claim as insufficiently

pleaded, finding:

"First, Scheuing fails to assert in his petition that he
ever told his trial counsel that his motive for murdering the
victim was to help his co-defendants and not robbery. As
such, Scheuing's counsel had no reason to think that his

39
CR-2022-0684

motive for killing the victim was anything other than robbery.
See James v. State, 61 So. 3d 357, 366 (Ala. Crim. App. 2010)
(holding that James's trial counsel were not ineffective for
failing to pursue a claim of self-defense because 'counsel had
no reason to believe that the shooting was in self-defense
because James did not tell his attorneys that he acted in self-
defense').

"....

"Second, Scheuing failed to proffer in his petition what
legal evidence his trial counsel could have presented during
the guilt phase of trial to prove his murdering the victim was
motivated by his desire to help his friends and not robbery.
Even if Scheuing had proffered such evidence in his petition,
he failed to state any rational reason why his counsel's
performance would have been deficient and prejudicial
because they did not present evidence showing that he
murdered the victim because he would not agree to better
terms for repaying a drug debt."

(C. 1228-29.)

On appeal, Scheuing merely repeats the allegations he made in his

petition without mentioning the circuit court's final order as to this claim

and without making any argument as to why the circuit court erred when

it summarily dismissed as insufficiently pleaded. Again, this Court has

held that similar failures of argument render an appellate brief

noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746 (holding that Woodward's argument on appeal did not

40
CR-2022-0684

satisfy Rule 28(a)(10), and was, therefore, deemed waived when he

"reassert[ed] this claim from his petition, but he ma[de] no argument

regarding why he believe[d] the circuit court's findings were incorrect").

Furthermore, Scheuing's argument to this Court included the vague

assertion that his counsel should have interviewed "virtually everyone,"

and the only authority he cites stands only for the general proposition

that counsel is required to investigate the case. Because Scheuing's

argument does not comply with Rule 28(a)(10), he has waived his

argument.

Even so, the circuit court correctly concluded that Scheuing's claim

was insufficiently pleaded. This Court has held that

" '[w]hile counsel has a duty to investigate in an attempt to
locate evidence favorable to the defendant, "this duty only
requires a reasonable investigation." Singleton v. Thigpen,
847 F.2d 668, 669 (11th Cir. (Ala.) 1988), cert. denied, 488
U.S. 1019, 109 S. Ct. 822, 102 L. Ed. 2d 812 (1989) (emphasis
added). See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066;
Morrison v. State, 551 So. 2d 435 (Ala. Cr. App. 1989), cert.
denied, 495 U.S. 911, 110 S. Ct. 1938, 109 L. Ed. 2d 301
(1990). Counsel's obligation is to conduct a "substantial
investigation into each of the plausible lines of defense."
Strickland, 466 U.S. at 681, 104 S. Ct. at 2061 (emphasis
added). "A substantial investigation is just what the term
implies; it does not demand that counsel discover every shred
of evidence but that a reasonable inquiry into all plausible
defenses be made." Id., 466 U.S. at 686, 104 S. Ct. at 2063.' "

41
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Broadnax v. State, 130 So. 3d 1232, 1247-48 (Ala. Crim. App. 2013)

(quoting Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999)).

Furthermore,

" '[t]he reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's
own statements or actions. Counsel's actions are usually
based, quite properly, on informed strategic choices made by
the defendant and on information supplied by the defendant.
In particular, what investigation decisions are reasonable
depends critically on such information. For example, when
the facts that support a certain potential line of defense are
generally known to counsel because of what the defendant has
said, the need for further investigation may be considerably
diminished or eliminated altogether. And when a defendant
has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's
failure to pursue those investigations may not later be
challenged as unreasonable. In short, inquiry into counsel's
conversations with the defendant may be critical to a proper
assessment of counsel's investigation decisions, just as it may
be critical to a proper assessment of counsel's other litigation
decisions. See United States v. Decoster, [199 U.S. App. D.C.
359,] 372-373, 624 F.2d [196,] 209-210 [ (D.C.1976) ].' "

Broadnax, 130 So. 3d at 1248 (quoting Strickland, 466 U.S. at 691, 104

S. Ct. 2052) (emphasis added).

Here, although Scheuing alleged in his amended petition an

alternative reason as to why he shot and killed Cook, Scheuing failed to

allege either that he told his trial counsel about his "real" reason for

killing Cook or precisely why his counsel should have investigated this

42
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alternative motive for killing Cook when Scheuing told the police that he

planned to commit a robbery to get money to buy Potts an Xbox 360 and

to get money that he could use to go to Michigan. Although the

information that Scheuing argues should have been presented by his trial

counsel appears to have been known by Potts and Kulp, Scheuing failed

to specifically plead which witnesses would have been revealed though

an "adequate" investigation and whether those witnesses would have

been available to testify at the time of Scheuing's trial. Because Scheuing

failed to allege these facts in his petition, the circuit court did not err

when it summarily dismissed this claim as insufficiently pleaded.

I.A.6.

Scheuing argues that his counsel were ineffective for "fail[ing] to

prevent the introduction of inflammatory victim-impact evidence in the

[guilt] phase." (Scheuing's brief, p. 19.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to "highly inflammatory victim-

impact evidence during the guilt phase" from Cook's mother, Elaine

Dockery. (C. 856.) Scheuing claimed that Dockery provided "an overview

of Sean Cook's life, explaining the circumstances of his birth, the family's

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experiences relocating, Mr. Cook's employment history, his living

situation, and the fact that he was caring for his mother at the time of

his death." (C. 856.) Scheuing further claimed that Dockery also testified

to "the circumstances surrounding [her] discovery of her son's death and

the moment she realized that he was no longer alive, as well as the

impact the death had on her life." (C. 856.) Scheuing also claimed that

the State "highlighted this evidence and encouraged the jury to consider

the emotional impact of the offense of the victim's mother as evidence

that Mr. Scheuing was guilty of capital murder." (C. 857.) Scheuing said

that if his "counsel objected to the improper admission of victim-impact

testimony there is a reasonable probability that [the trial court] would

have excluded it and that the jury would have reached different verdicts

in the culpability stage." (C. 859.)

The circuit court summarily dismissed this claim because Scheuing

had "raised the issue underlying this ineffectiveness claim on direct

appeal," and this Court "held that the victim's mother's testimony ' "did

not affect the outcome of the trial, that it did not prejudice [Scheuing's]

substantial rights, and that it did not rise to the level of plain error." '

Scheuing, 161 So. 3d at 265 (citation omitted)." (C. 1229.) The circuit

44
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court, noting "that a finding of plain error on direct appeal does not

foreclose Scheuing from arguing that he was prejudiced by his trial

counsel's failure to object to certain testimony from the victim's mother,"

found that "Scheuing failed to plead any specific facts in his petition that,

if true, would establish that his is a 'rare case' " where the application of

the plain-error standard and the prejudice prong of Strickland will result

in different outcomes. (C. 1230.)

As the circuit court explained, this Court, in Scheuing's direct

appeal, addressed the claim underlying this claim of ineffective

assistance of counsel and held:

" 'The Alabama Supreme Court has held that
victim-impact statements:

" ' "are admissible during the guilt
phase of a criminal trial only if the
statements are relevant to a material
issue of the guilt phase. Testimony
that has no probative value on any
material question of fact or inquiry is
inadmissible. See C. Gamble,
McElroy's Alabama Evidence § 21.01
(4th ed. 1991), citing, inter alia,
Fincher v. State, 58 Ala. 215 (1877) (a
fact that is incapable of affording any
reasonable inference in reference to a
material fact or inquiry involved in the
issue cannot be given in evidence). If

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the statements are not material and
relevant, they are not admissible."

" 'Ex parte Crymes, 630 So. 2d 125, 126 (Ala. 1993).

" ' "[T]he introduction of victim impact
evidence during the guilt phase of a capital murder
trial can result in reversible error if the record
indicates that it probably distracted the jury and
kept it from performing its duty of determining the
guilt or innocence of the defendant based on the
admissible evidence and the applicable law." Ex
parte Rieber, 663 So. 2d 999, 1006 (Ala. 1995). The
Court in Ex parte Rieber also said:

" ' "However, in Ex parte Crymes,
630 So. 2d 125 (Ala. 1993), a plurality
of this Court held in a capital murder
case in which the defendant was
sentenced to life imprisonment without
parole that a judgment of conviction
can be upheld if the record conclusively
shows that the admission of the victim
impact evidence during the guilt phase
of the trial did not affect the outcome of
the trial or otherwise prejudice a
substantial right of the defendant."

" '663 So. 2d at 1005.'

"Woodward v. State, 123 So. 3d 989, 1021 (Ala. Crim. App.
2011).

"The appellant in Woodward argued that much of the
testimony of the victim's widow regarding the victim was
improper victim-impact evidence. Id. at 1020. In reviewing
the record under the plain-error standard, this Court agreed
that some of the testimony about which Woodward

46
CR-2022-0684

complained was irrelevant and inadmissible. That evidence
consisted of testimony about where and how the widow and
victim met, that the victim, on the day he was shot, joked
about an exercise machine he had recently purchased, that
the victim had regularly donated plasma, and that the victim
and the widow 'both had a policy to give of themselves to
others.' Id. at 1021. This Court concluded, however, 'that the
irrelevant portions of [the victim's widow's] testimony did not
operate to deny Woodward a fair trial or otherwise prejudice
a substantial right of Woodward's' and 'that it did not affect
the outcome of the trial, that it did not prejudice Woodward's
substantial rights, and that it did not rise to the level of plain
error.' Id. at 1022.

"During the guilt phase of the trial, the only potential
prejudice Scheuing could have faced from Dockery's testimony
would have been the jury's relying on that testimony to find
him guilty. When compared with the defense strategy, which
was to admit guilt and focus on a favorable sentencing
recommendation, this Court concludes that Dockery's
testimony 'did not affect the outcome of the trial, that it did
not prejudice [Scheuing's] substantial rights, and that it did
not rise to the level of plain error.' Id. at 1022."

Scheuing, 161 So. 3d at 264-65 (emphasis added).

Although " 'a determination on direct appeal that there has been no

plain error does not automatically foreclose a determination of the

existence of the prejudice required under Strickland to sustain a claim of

ineffective assistance of counsel,' " "it is 'the rare case in which the

application of the plain-error test and the prejudice prong of the

47
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Strickland test will result in different outcomes.' " Bohannon, ___ So. 3d

at ____ (quoting Ex parte Taylor, 10 So. 3d at 1078).

As this Court noted in Scheuing's direct appeal, the only "potential

prejudice" Scheuing could have suffered from Dockery's testimony was

the jury finding him guilty of capital murder based on that testimony.

But, "in light of Scheuing's defense strategy to admit guilt and to focus

on sentencing," he cannot show that he was prejudiced by the admission

of Dockery's testimony. Scheuing, 161 So. 3d at 281. As the circuit court

noted in its order dismissing this claim of ineffective assistance of

counsel, Scheuing failed to plead any facts showing that he was

prejudiced by Dockery's testimony, and, thus, he failed to show why this

claim was one of the "rare" claims in which prejudice can be found in a

petition for relief filed pursuant to Rule 32, Ala. R. Crim. P., after this

Court has found on direct appeal that no plain error occurred on the

underlying claim. Thus, the circuit court properly dismissed this claim.

I.A.7.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the prosecution's improper assertion that [he] lacked remorse

for the offense at the [guilt] phase." (Scheuing's brief, p. 21.) The totality

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CR-2022-0684

of Scheuing's argument on appeal is as follows: "Counsel were ineffective

for failing to object to the prosecution's unfounded factual assertion that

Mr. Scheuing lacked remorse for his prior murder conviction."

(Scheuing's brief, p. 21.) Scheuing's one-sentence argument on appeal

falls well short of satisfying the requirements of Rule 28(a)(10), Ala. R.

App. P. Because Scheuing makes no argument and cites no authority as

to this claim of ineffective assistance of counsel, Scheuing has waived and

abandoned this argument on appeal, and we will not address it. See

Washington v. State, 95 So. 3d 26, 75 (Ala. Crim. App. 2012) (holding that

Washington's failure to comply with Rule 28(a)(10), resulted in his waiver

of his argument on appeal).

I.A.8.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately explain [to the jury his] statements to authorities."

(Scheuing's brief, p. 21.) The totality of Scheuing's argument on appeal

is as follows:

"Counsel should have moved to suppress Mr. Scheuing’s
statements to law enforcement. [Kimmelman v.] Morrison,
477 U.S. [365,] 374-75 [(1986)]. Counsel's performance in this
respect was deficient under Strickland v. Washington. As
discussed above, Mr. Scheuing gave false confessions to law
enforcement during the investigation of this case. He did so

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because he wanted to protect his friend James Potts. Mr.
Scheuing believed that he had nothing in life and that Mr.
Potts had a family and a future. So Mr. Scheuing decided to
fall on his proverbial sword to protect his friends.

"Had trial counsel properly investigated the
circumstances of Mr. Scheuing's crime, they would have
known that his confessions were filled with inaccuracies.
That he had confessed to a robbery that never occurred. He
was negotiating with a drug dealer and things went sour. He
then killed him."

(Scheuing's brief, p. 22.)

Scheuing's two-paragraph argument does not satisfy Rule

28(a)(10), Ala. R. App. P., which, again, requires that an argument set

out "the contentions of the appellant/petitioner with respect to the issues

presented, and the reasons therefor, with citations to the cases, statutes,

other authorities, and parts of the record relied on." Scheuing makes no

argument concerning the circuit court's judgment as to this claim of

ineffective assistance of counsel. What is more, Scheuing cites only

general propositions of law to support his claim that his counsel were

ineffective, and he does not cite any portions of the record concerning this

claim. He states that his counsel should have "moved to suppress" his

statement but gives no grounds for suppression. Thus, Scheuing has

waived this argument on appeal, and we will not address it. See

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Washington, 95 So. 3d at 75 (holding that Washington's failure to comply

with Rule 28(a)(10) resulted in his waiver of his argument on appeal).

I.A.9.

Scheuing argues that his counsel were ineffective for "[f]ail[ing] to

object to an unqualified fact witness lifting fingerprints and then

testifying that they match without any meaningful foundation or being

qualified as an expert in fingerprint analysis." (Scheuing's brief, p. 22.)

In his third amended petition, Scheuing alleged that his trial

counsel were ineffective during the guilt phase of his trial when they

failed to object to testimony from Officer Bobby Yancey. According to

Scheuing:

"During [his] culpability phase, the prosecution matched
his fingerprints to latent prints lifted from physical evidence
through the same fact witness: the lead investigating officer
Bobby Yancey. Officer Yancey was qualified as an expert 'in
the area of processing fingerprints.' (R. 835.) He was not
qualified as an expert in matching prints. Nevertheless, the
investigating officer who lifted the latent prints opined that
they matched Mr. Scheuing's prints. (R. 839.) Officer Yancey
did not provide a basis for this expert opinion aside from
saying that grooves and ridges matched. (R. 836-40.)"

(C. 864-65.) Scheuing claimed that his counsel's failure to object to

Officer Yancey's testimony was "unmistakably prejudicial" because, he

51
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argues, "that fabricated 'match' was an unscientific attempt to connect

Mr. Scheuing to the crime under the guise of science." (R. 866-67.)

The circuit court dismissed this claim as without merit, finding:

"Officer Yancey testified that he was certified in basic
and advanced latent fingerprint investigation and
examination. (R. 834.) Based on his qualifications, the circuit
court permitted Officer Yancey to testify as an expert in
fingerprint processing. (R. 835.) Since the court concluded
that the State had established that Officer Yancey was an
expert in fingerprint analysis, Scheuing's trial counsel had no
legitimate ground to object and, therefore, were not ineffective
for failing to do so. See Magwood v. State, 689 So. 2d 959, 981
(Ala. Crim. App. 1996) ('Counsel cannot be held ineffective for
failing to make a challenge that has no basis in law or fact.')."

(C. 1234.)

As the circuit court correctly found, Scheuing's counsel had no basis

to object to Officer Yancey's expert opinion as to Scheuing's fingerprints

matching those found at the crime scene because Officer Yancey testified

that he was qualified and trained both to collect and to process

fingerprints and that he was "certified in basic and advanced latent

fingerprint investigation and examination along with palm prints."

(Record in CR-10-1454, R. 834 (emphasis added).) The circuit court

qualified him as an expert in "the area of fingerprint processing," which

would include all aspects of processing fingerprint evidence such as

52
CR-2022-0684

fingerprint comparisons. So, as the circuit court found, "Scheuing's trial

counsel had no legitimate ground to object and, therefore, were not

ineffective for failing to do so. See Magwood v. State, 689 So. 2d 959, 981

(Ala. Crim. App. 1996) ('Counsel cannot be held ineffective for failing to

make a challenge that has no basis in law or fact.')." (C. 1234.)

What is more, even assuming that his counsel should have objected

to Officer Yancey's testimony, Scheuing failed to sufficiently plead facts

showing how he was prejudiced by his counsel's alleged deficient

performance. Although Scheuing claimed in his petition that the

"fingerprints directly tied [him] to the murder with 'science,' so counsel's

failure to object prejudiced him," (C. 867), Scheuing does not explain why

being tied to the crime scene by fingerprint evidence mattered in light of

his statement to law enforcement admitting to committing a robbery at

the Pak-a-Sak store. His argument that prints placing Scheuing at the

scene prejudiced him is also inconsistent with Scheuing's argument that

his counsel should have agreed that Scheuing killed Cook, but that they

should have provided a different theory as to why he killed Cook.

Because Scheuing's counsel had no basis for an objection to Officer

Yancey's testimony and because, even if he had, he failed to sufficiently

53
CR-2022-0684

plead prejudice, the circuit court did not err when it summarily dismissed

this claim.

I.A.10.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to inadmissible prior-bad-act evidence." (Scheuing's brief, p. 23.)

In his third-amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to certain prior-bad-act

evidence, claiming that,

"[d]uring the guilt innocence phase, the prosecution
introduced considerable evidence that [he] stole a Kia
Sportage vehicle and a gun in the days leading up to the
offense (R. 648-51, 652-56), and that [he] attempted to steal a
purse several days after the offense (R. 713-14). Trial counsel
failed to object to the introduction of this improper evidence
and, in the case of the attempted purse theft, counsel
stipulated to the admission of this aggravating prior bad acts
evidence. Counsel then failed to object when, in his guilt
innocence phase closing argument, the prosecution reminded
the jury of this evidence, thus highlighting [his] involvement
in the prior criminal activity."

(C. 868.) Scheuing claimed that he was prejudiced by his counsel's failure

to object to this evidence because, had they objected, then "the trial court

would have been obligated to exclude this evidence." (C. 869.) Scheuing

claimed that, if the jury had not been exposed to this prior-bad-act

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evidence, then "there is a reasonable probability that [he] would not have

been convicted and sentenced to death." (C. 869.)

The circuit court dismissed this claim as follows:

"Scheuing raised the issues underlying these
ineffectiveness claims on direct appeal. Concerning evidence
that Scheuing stole the sports-utility vehicle and the gun
before the murder, the Alabama Court of Criminal Appeals
held that 'there was no error in the admission of the evidence
regarding the theft of the Sportage and the pistol.' Scheuing,
161 So. 3d at 275. Since there was no error in the admission
of this evidence, this Court finds that Scheuing cannot
demonstrate that his trial counsel's performance was
deficient and that he was prejudiced under Strickland. See
Brooks v. State, [340 So. 3d 410, 466 (Ala. Crim. App. 2020)]
('Because this Court held [on direct appeal] that there was no
error in the State's rebuttal closing argument, Brooks'[s]
claim that his trial counsel were ineffective for failing to object
to the State's rebuttal closing argument is without merit.').

"....

"Concerning the admission of evidence that Scheuing
attempted to steal a purse after the murder, the Alabama
Court of Criminal Appeals held on direct appeal that this
evidence 'was admitted to establish an attempt by Scheuing
to continue his "flight after the murder and, thus, his
consciousness of guilt.' " Scheuing, 161 So. 3d at 276 (citation
omitted). The Criminal Court of Appeals concluded that 'the
admission of the evidence regarding the theft of [the victim's]
purse was not ... plain error.' Id.

"This Court is aware that a finding of no plain error on
direct appeal does not foreclose Scheuing from arguing that
he was prejudiced by his trial counsel's failure to object to the
prosecutor offering evidence that he attempted to steal a

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purse after the murder. See Taylor, 10 So. 3d at 1078.
However, 'Ex parte Taylor applies only to the prejudice prong
of Strickland, not to the deficient-performance prong.'
Woodward, 276 So. 3d at 769. This Court finds that Scheuing
failed to plead any specific facts in his petition that, if true,
would establish that his is a 'rare case.' See Boyd [v. State],
746 So. 2d [364,] 406 [(Ala. Crim. App. 1999)] ('Rule 32.6(b)
requires that the petition itself disclose the facts relied upon
in seeking relief.' ').

"Based on the holding by the Alabama Court of Criminal
Appeals and Scheuing's failure to plead any facts in his
petition to dispute that holding, this Court finds that this
ineffectiveness claim is without merit; therefore, it is denied.
Rule 32.7(d), Ala. R. Crim. P."

(C. 1235-37.)

As the circuit court found in its order dismissing this claim, this

Court, in Scheuing's direct appeal, addressed the claims underlying

Scheuing's claim of ineffective assistance of counsel. In his direct appeal,

Scheuing argued that the trial court erred when it allowed the State to

introduce evidence of three theft offenses that, he said, was improper

prior-bad-act evidence: (1) the theft of the Kia Sportage; (2) the theft of

the pistol from the Kia Sportage; and (3) the theft of Palmer's purse.

Scheuing, 161 So. 3d at 271. This Court, reviewing Scheuing's arguments

for plain error, held that there was no error in the admission of the

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evidence indicating that Scheuing had stolen the Kia Sportage and the

pistol, explaining as follows:

"Scheuing argues that the State erroneously admitted
evidence indicating that he stole the Sportage and the .38
caliber pistol. During November, but before Thanksgiving
2008, Scheuing stole Harrison's Sportage, which contained
Jakiel's loaded .38 caliber pistol, the gun Scheuing used to kill
Cook. The admission of the evidence of the theft of the Kia
Sportage and the pistol, therefore, told the complete story of
Scheuing's crimes. That evidence also explained how
Scheuing acquired the pistol he used to murder Cook.

"Scheuing argues that the introduction of evidence
regarding the thefts of the Sportage and the pistol was
'unwarranted because it was entirely gratuitous' in light of
the fact that the 'entire shooting in [the] case was captured on
videotape and, upon request, Mr. Scheuing gave a complete
and candid confession.' (Scheuing's brief, at 41.) The State,
however, was not required to present minimal evidence
establishing Scheuing's guilt. Rather, the State had the right
to fully prove Scheuing's guilt with all relevant, admissible
evidence."

Scheuing, 161 So. 3d at 274 (footnote omitted).

Because there was no error in the trial court's admitting evidence

indicating that Scheuing had stolen the Kia Sportage and the pistol, any

objection that his counsel could have raised concerning that evidence

would have been baseless. Thus, the circuit court did not err when it

summarily dismissed this claim. See, e.g., Carruth, 165 So. 3d at 645

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(holding that counsel "were not ineffective for failing to raise a baseless

objection").

As to Scheuing's argument that the trial court erred when it

allowed the State to introduce evidence indicating that he stole a purse

after he killed Cook, this Court held on direct appeal that the admission

of that evidence did not rise to the level of plain error, explaining:

" ' " 'In a criminal prosecution the state may
prove that the accused engaged in flight to avoid
prosecution ... as tending to show the accused's
consciousness of guilt.... The state is generally
given wide latitude or freedom in proving things
that occurred during the accused's flight.' C.
Gamble, McElroy's Alabama Evidence § 190.01(1)
(3rd ed.1977). 'Evidence of flight is admissible
even though it is weak or inconclusive or if several
days have passed since the commission of the
crime.' Tate v. State, 346 So. 2d 515, 520 (Ala.
Crim. App. 1977). Evidence of flight is admissible
even though that evidence involves the
commission of other crimes by the accused. See
Tate, supra; Neal v. State, 372 So. 2d 1331, 1344-
45 (Ala. Crim. App. 1979)." '

"Eggers v. State, 914 So. 2d 883, 918-19 (Ala. Crim. App. 2004)
(quoting Beaver v. State, 455 So. 2d 253, 257 (Ala. Crim. App.
1984)).

"In Eggers, this Court addressed a claim of ineffective
assistance of counsel that was based, in part, on an assertion
that trial counsel should have objected to evidence
establishing that, following the commission of a capital
murder, the appellant 'was arrested in Kentucky while riding

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in a stolen pickup truck....' Eggers, 914 So. 2d at 916. This
Court concluded that the admission of the

" 'evidence relating to his arrest in Kentucky was
not offered to show his bad character by
establishing that he had committed another crime.
Rather, the evidence appears to have had a dual
purpose: to establish a link between Eggers and
the red Nissan pickup truck because, as noted
above, Francis's debit card was later found in that
truck and to establish Eggers's flight after the
murder and, thus, his consciousness of guilt.'

"Id. at 916.

"Here, the admission of the evidence relating to
Scheuing's attempted theft of the purse was admitted to
establish an attempt by Scheuing to continue his 'flight after
the murder and, thus, his consciousness of guilt.' Id. The
evidence established that Scheuing had been headed toward
the west coast. When he realized he was running low on
gasoline, he attempted to steal Palmer's purse. This provided
the jury with circumstantial evidence that the purpose for the
theft was to obtain money to purchase gasoline to help him
continue his flight. The admission of the evidence regarding
the theft of Palmer's purse was not, therefore, plain error.
Rule 45A, Ala. R. App. P."

Scheuing, 161 So. 3d at 275-76.

As explained above, and as correctly set out in the circuit court's

order dismissing this claim, although " 'a determination on direct appeal

that there has been no plain error does not automatically foreclose a

determination of the existence of the prejudice required under Strickland

59
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to sustain a claim of ineffective assistance of counsel,' " "it is 'the rare case

in which the application of the plain-error test and the prejudice prong of

the Strickland test will result in different outcomes.' " Bohannon, [Ms.

CR-21-0148, Aug. 18, 2023] ___ So. 3d at ____ (quoting Ex parte Taylor,

10 So. 3d at 1078).

As this Court noted in Scheuing's direct appeal, the State properly

presented evidence of the attempted theft of the purse to show Scheuing's

flight and, thus, to establish his consciousness of guilt. As the circuit

court noted in its order dismissing this claim of ineffective assistance of

counsel, Scheuing failed to plead any facts "in his petition to dispute that

holding" (C. 1237); and, thus, he failed to show why this claim was one of

the "rare" claims mentioned in Ex parte Taylor, supra, where the plain-

error standard and the prejudice prong of Strickland will result in

different outcomes. Thus, the circuit court properly dismissed this claim.

I.A.11.

Scheuing argues, as he did in his third amended petition, that his

counsel were ineffective for "fail[ing] to object to the State's improper

arguments through the [guilt] phase that watered down the reasonable-

doubt standard." (Scheuing's brief, p. 25.)

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In his Rule 32 petition Scheuing claimed that

"[d]uring closing arguments at the guilt/innocence phase, the
prosecution offered its own interpretation of the reasonable-
doubt standard for the jury through erroneous, suggestive,
and unlawful language that misled the jury as to the correct
standard: 'What is reasonable doubt? ... A doubt is not just
mere speculation, not fanciful conjecture, not guesswork, not
a doubt you've hunted up, not a juror who sits back in the
room and says, you know, there's got to be more to this story,
I can't believe stuff like this happens. Sometimes the case is
just what it is. You've seen clearly what occurred.' (R. 899-
900) (emphasis added)."

(C. 869-70.) Scheuing continued:

"Most problematic, in its closing argument, the
prosecution effectively eliminated the reasonable-doubt
standard completely by telling jurors there was no doubt in
Mr. Scheuing's case: 'Sometimes the case is just what it is.
You've seen clearly what occurred.' (R. 900.) Additionally,
though the prosecutor said reasonable doubt is not fanciful
speculation, he continued to erode the standard by telling
jurors that even doubts based on their common sense are not
sufficient. (R. 899-900 ('But a doubt is not ... a juror who sits
back in the room and says, you know, there's got to be more to
this story ....'))."

(C. 870.) Scheuing claimed that he was prejudiced by his counsel's failure

to object to these statements because an objection "would have prevented

the prosecution from misstating the reasonable-doubt standard, and

there is a reasonable probability that [he] would not have been convicted

and sentenced to death." (C. 870-71.)

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The circuit court dismissed this claim as being without merit

because "the issue underlying this ineffectiveness claim" was raised on

direct appeal and this Court held that Scheuing failed to show that the

prosecutor's argument was error. (C. 1238.)

On appeal, Scheuing again merely reiterates the claim raised in his

petition without mentioning or addressing the circuit court's order

dismissing this claim. This Court has held that similar failures of an

appellate brief render the brief noncompliant with Rule 28(a)(10), Ala. R.

App. P., and constitute a waiver of the underlying postconviction claim.

See, e.g., Woodward, 276 So. 3d at 746. Furthermore, the only legal

authority cited by Scheuing is Cage v. Louisiana, 498 U.S. 39, 41 (1990),

which involved a jury instruction by a trial court, not a comment by a

prosecutor, and the instruction in Cage is entirely different than the

statements made by the prosecutor in Scheuing's trail. Because

Scheuing's argument on appeal does not comply with Rule 28(a)(10), he

has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. As the circuit court correctly found in

its order dismissing this claim, this Court, in Scheuing's direct appeal,

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rejected the claim underlying Scheuing's claim of ineffective assistance

of counsel, holding:

"In Jackson v. State, [169 So. 3d 1, 66] (Ala. Crim. App.
2010), this Court addressed a claim that the prosecution had,
during closing argument, minimized the burden of proof by
arguing 'that the [jurors] should rely on their gut feelings and
look for the truth rather than holes or doubt in the case.'
Jackson, [169 So. 3d 66]. This Court found no error under the
plain-error standard, noting that 'the trial court properly
instructed the jury as to the reasonable-doubt standard and
admonished the jury members that they were not to consider
the arguments of counsel as evidence in the case.' Id.

"In Brown v. State, 11 So. 3d 866 (Ala. Crim. App. 2007),
this Court addressed a claim of error based upon the
prosecutor's argument: 'Remember I told you, you would know
it in your gut what's reasonable doubt? You will know it in
your gut. And I think you know it in your gut.' Brown, 11 So.
3d at 910. This Court found no plain error because:

" 'The circuit court specifically instructed the
jury that it was not to consider arguments of
counsel as the arguments related to the law and
that the court would instruct the jury as to the law
applicable in the case. The court correctly
instructed the jury on reasonable doubt. There is
no evidence that the above argument so infected
the trial with unfairness that Brown was denied a
fair trial.'

"Id.

"Here, the prosecutor did not eliminate the State's
burden of proof by telling jurors that it had already been
satisfied, nor did the prosecutor ask jurors to disregard their
common sense in assessing whether reasonable doubt exists.

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Rather, the prosecutor explained that fanciful speculation
does not give rise to reasonable doubt and that the evidence
the jury had seen and heard established Scheuing's guilt
beyond a reasonable doubt. There was nothing improper in
the prosecutor's argument. Furthermore, the circuit court
instructed the jury: 'What the attorneys have had to say, both
for the state and for the defendant, they are not any evidence
in this case.' (R. 916-17.) The court also correctly instructed
the jury on reasonable doubt.

"Accordingly, Scheuing has not established that the
prosecutor's argument was error, much less plain error. See
Rule 45A, Ala. R. App. P.; Brown, 11 So. 3d at 910."

Scheuing, 161 So. 3d at 284-85 (emphasis added).

Because this Court held that the complained-of comments were not

improper and because this Court further held that the trial court properly

instructed the jury on reasonable doubt, the issue underlying Scheuing's

claim of ineffective assistance of counsel is without merit, and any

objection that his counsel could have raised concerning those comments

would have been baseless. Thus, the circuit court did not err when it

summarily dismissed this claim. See, e.g., Carruth, 165 So. 3d at 645

(holding that counsel "were not ineffective for failing to raise a baseless

objection").

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I.A.12.

Scheuing argues that his counsel were ineffective for "fail[ing] to

request jury instructions on lesser-included offenses." (Scheuing's brief,

p. 26.)

In his third amended petition, Scheuing alleged that his trial

counsel were ineffective because they

"failed to request a lesser-included instruction, which left the
jury to decide between acquittal or conviction for capital
murder. With the third option unavailable, the jury was left
to ('resolve any doubts in favor of a capital conviction;' an
outcome that Beck[ v. Alabama, 447 U.S. [625 (1980),] found
untenable. 447 U.S. at 632. Had trial counsel requested a
lesser-included instruction, there is a reasonable probability
that Mr. Scheuing would not have been convicted or sentenced
to death."

(C. 871.)

The circuit court summarily dismissed this claim as insufficiently

pleaded because Scheuing failed to allege "what specific lesser-included

instructions his trial counsel should have requested," (C. 1238), and as

without merit because this Court in Scheuing's direct appeal found no

error in the trial court's "failure to give any lesser-included instructions."

(C. 1239.)

The totality of Scheuing's argument on appeal is as follows:

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"The United States Supreme Court has held that the
failure to instruct on a lesser-included offense when there is
some doubt regarding an element supporting a capital
conviction impermissibly 'enhances the risk of an
unwarranted conviction.' Beck v. Alabama, 447 U.S. 625, 637
(1980).

"Here, jurors viewed the confession and videotape of the
offense (R. 828, 861). Properly handled, Scheuing could be
presented to the jury as a lonely person who was protecting a
third party, no matter how ill advised. Trial counsel, however,
failed to request a lesser-included instruction, which left the
jury to decide between acquittal or conviction for capital
murder. With the third option unavailable, the jury was left
to 'resolve any doubts in favor of a capital conviction,' an
outcome that Beck found untenable. 447 U.S. at 632. Had
this occurred, it is likely Scheuing would have avoided the
death penalty."

(Scheuing's brief, p. 26.) Scheuing's two-paragraph argument does not

satisfy the requirements Rule 28(a)(10), Ala. R. Crim. P. Thus, Scheuing

has waived this claim.

Furthermore, the circuit court properly dismissed this claim as

insufficiently pleaded. As the circuit court noted in its dismissal of this

claim, although Scheuing alleged that his counsel were ineffective for

failing to request a jury instruction on a lesser-included offense, Scheuing

failed to allege what lesser-included offense his counsel should have

requested an instruction on. Just as a petitioner's "failure to explain in

his petition how the evidence presented at trial would have supported a

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jury instruction [and, thus,] failed to meet the specificity requirements of

Rule 32.6 (b), Ala. R. Crim. P.," Calhoun v. State, 261 So. 3d 457, 477

(Ala. Crim. App. 2016) (emphasis added), the failure to state which

lesser-included charge that the petitioner believes should have been

given is equally fatal to a claim of ineffective assistance of counsel. Thus,

Scheuing's claim failed to satisfy the full fact pleading requirements set

out in Rule 32.3 and 32.6(b), Ala. R. Crim. P., and the circuit court did

not err when it dismissed this claim.

I.A.13.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the trial court's instruction that confessions were due greater

weight than other evidence." (Scheuing's brief, p. 27.)

In his third-amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to the following jury instruction

given by the trial court:

" 'There has been testimony offered ... the defendant ... made
an alleged statement or confession .... I want to tell you that
such alleged confessions of guilt when deliberately and
voluntarily made are among the most effectual and
satisfactory proof that could be received in courts of justice.'
(R. 932-33)."

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(C. 872.) Scheuing alleged that he was prejudiced by his counsel's failure

to object to this instruction because his "confession was a centerpiece of

his trial" and the "prosecution relied heavily on it in its arguments." (C.

873.)

The circuit court summarily dismissed this claim because Scheuing

"raised the issue underlying this ineffectiveness claim on direct appeal"

and held that " 'in light of Scheuing's defense strategy to admit guilt and

to focus on sentencing, and the fact that the State's evidence of Scheuing's

guilt was ironclad, any error in the jury instructions was harmless.' " (C.

1240 (quoting Scheuing, 161 So. 3d at 281 (citation omitted)).

As noted in the circuit court's order dismissing this claim, this

Court, in Scheuing's direct appeal, examined the trial court's instruction

in context of "the entire jury instruction regarding Scheuing's

confessions," and found that "there is no 'reasonable likelihood that the

jury applied the instruction[s] in an improper manner.' " Scheuing, 161

So. 3d at 281 (quoting Singletary v. State, 473 So. 2d 557 (Ala. Crim. App.

1984)). This Court further held that, "in light of Scheuing's defense

strategy to admit guilt and to focus on sentencing, and the fact that the

State's evidence of Scheuing's guilt was ironclad, any error in the jury

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instructions was harmless. Ex parte Greathouse, 624 So. 2d at 211

(recognizing that error could be harmless when the evidence of the

defendant's guilt is 'virtually ironclad')." Scheuing, 161 So. 3d at 281.

Because this Court held in Scheuing's direct appeal that the complained-

of instructions were, at worst, harmless, and because Scheuing alleged

nothing in his petition that added to the argument he raised on direct

appeal, the circuit court did not err when it dismissed this claim.

I.A.14 and 15.

Scheuing argues that his counsel were ineffective for "fail[ing] to

question the jury foreman and other jurors after the foreman disclosed

misconduct." (Scheuing's brief, p. 28.) In a related claim, Scheuing also

argues that his counsel were ineffective for "fail[ing] to move for a

mistrial based on the jury foreman's misconduct." (Scheuing's brief, p.

29.)

In his third-amended petition, Scheuing claimed as follows:

"Trial counsel were ineffective in failing to question the
jury foreman or any other juror following the disclosure that
jury foreman T.K. overheard a bailiff say, "they ought to fry
that --," after which the guard covered his mouth with his
hands as he looked at the juror. (R. 955.) During jury
deliberations at the guilt/innocence phase, jury foreman T.K.
overheard a bailiff say that Mr. Scheuing should be executed.
(R. 954.) The foreman contacted an attorney uninvolved in

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the case who then contacted the court. (R. 954.) The Court
briefly questioned the jury foreman outside of counsel's
presence (R. 954-59), but trial counsel chose not to question
the foreman or any other juror as to the reported misconduct
(R. 959). Trial counsel failed to question the foreman about
his contact with the attorney, including the extent of their
discussion of the misconduct and the extent to which they had
discussed any other facet of the case. This failure was all the
more egregious because the juror misconduct occurred during
the guilt/innocence phase deliberations. Trial counsel also
failed to question other jurors as to whether the foreman
discussed the comment with them, which would have been
reasonable given that the foreman himself had already
committed misconduct by talking about the case to a member
of the public.

"Had trial counsel questioned other jurors, they would
have discovered the extent of misconduct as well as the extent
of prejudice it caused, they would have been better able to
move for a mistrial, and Mr. Scheuing would not have been
convicted of capital murder and sentenced to death. Foreman
T.K. was the leader in the deliberations. He was an important
person in the room -- the foreman."

(C. 873-74.) Scheuing also alleged that his counsel were ineffective for

failing to move the trial court for a mistrial based on this alleged

misconduct. (C. 874-75.)

The circuit court dismissed both claims because Scheuing raised

"the issue underlying this ineffectiveness claim on direct appeal" and this

Court found that " 'the circuit court properly followed the process for

addressing third-party contacts with jurors' and held that 'no error much

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less plain error resulted from the circuit court's failure to declare a

mistrial.' " (C. 1241-42 (quoting Scheuing, 161 So. 3d at 271).)

On appeal, Scheuing reiterates the claims raised in his petition

without even mentioning or addressing the circuit court's order

dismissing this claim. This Court has held that similar failures of

argument do not comply with Rule 28(a)(10), Ala. R. App. P., and

constitute a waiver of the underlying postconviction claim. See, e.g.,

Woodward, 276 So. 3d at 746. Scheuing also cites no legal authority

supporting his proposition that counsel should have questioned the juror

about the discussion. Because Scheuing's arguments on appeal do not

comply with Rule 28(a)(10), Ala. R. App. P., he has waived his arguments.

Even so, his arguments are without merit. To start, Scheuing's

claim that his trial counsel were ineffective for failing to ask the jury

foreman and other jurors questions about the alleged misconduct is

insufficiently pleaded. Indeed, although Scheuing alleged that this

counsel should have asked the jury foreman "about his contact with the

attorney, including the extent of their discussion of the misconduct and

the extent to which they had discussed any other facet of the case" and

failed to ask "other jurors as to whether the foreman discussed the

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comment with them," (C. 873), Scheuing did not allege how the jury

foreman and the other jurors would have answered those questions had

his trial counsel asked them. Scheuing also did not sufficiently allege

how he was prejudiced by his counsel's alleged failures. Rather, Scheuing

made only the bare allegation that his counsel "would have discovered

the extent of misconduct as well as the extent of prejudice it caused,"

which, he said, would have allowed them to be "better able to move for a

mistrial, and Mr. Scheuing would not have been convicted of capital

murder and sentenced to death." (C. 874.) Yet, there is no basis to believe

that the "extent of misconduct" is any greater than what was discussed

during the trial. Scheuing's bare allegation of prejudice is not sufficient

to satisfy his burden of pleading under Rule 32.3 and 32.6(b), Ala. R.

Crim. P. See, e.g., Hyde, 950 So. 2d at 356 ("A bare allegation that

prejudice occurred without specific facts indicating how the petitioner

was prejudiced is not sufficient."). Thus, the circuit court did not err

when it summarily dismissed this claim.

Additionally, the circuit court properly dismissed Scheuing's claim

that his counsel were ineffective for failing to move for a mistrial. As the

circuit court noted in its order dismissing this claim, this Court, in

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Scheuing's direct appeal, held "that no error, much less plain error,

resulted from the circuit court's failure to declare a mistrial." Scheuing,

161 So. 3d at 271. Because counsel is not "ineffective for failing to raise

a baseless objection" or claim, Carruth, 165 So. 3d at 645, the circuit court

properly dismissed Scheuing's claim that his counsel were ineffective for

failing to move for a mistrial.

I.B. Penalty Phase

Next, we turn to Scheuing's arguments concerning his counsel's

effectiveness during the penalty phase of his trial.

I.B.1.

First, Scheuing argues that his counsel were ineffective for

"fail[ing] to present a coherent mitigation theory, introducing

aggravating evidence that directly contradicted their mitigating

evidence." (Scheuing's brief, p. 31.) Specifically, Scheuing says that his

counsel were ineffective when they presented testimony from Robert

Scheuing, Joanne Terrell, and Richard Green and later presented

testimony from Donal Frye that undermined their mitigation theory that

Scheuing did well in a structured environment and had changed since he

had murdered Cook. Scheuing explains that his

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"[c]ounsel emphasized during their penalty phase
presentation was that Scheuing did well in structured
environments, such as Youth Challenge Academy, the Air
Force, and prison. (See, e.g., 1074, 1083, 1173, 1177.) Counsel
emphasized that Scheuing did well in structured
environments in their opening and closing statements. (R.
976, 1242.) Counsel then elicited testimony from Robert
Scheuing that Scheuing did well in 'very strict' and
'structured environments.' (R. 1073-74.) At the end of
counsel's questioning of Robert Scheuing, counsel emphasized
this point. (R. 1083.) Defense counsel also elicited testimony
from Joann Terrell regarding Scheuing's ability to do well in
a structured environment. (R. 1172, 173, 176.)

"These records painted a different story about Scheuing.
The records show Scheuing's struggles in prison in Georgia,
including his disciplinary history (C. 688-89, 696, 703, 804,
1046); his attempt to escape from prison in Georgia (C. 645-
55, 891, 893, 944); and his altercation with an inmate while
awaiting trial in the Calhoun County jail. (C. 516-38.)

"Counsel also called Donald Frye, the inmate at the jail
with whom Scheuing had an altercation, to testify. (R. 1094-
1 105.) This evidence directly contradicted counsel's claim,
and Robert Scheuing and Joann Terrell's testimony, that
Scheuing did well in structured environments.

"Counsel also attempted to argue that Scheuing had
changed while awaiting trial in the Calhoun County jail.
Richard Green testified that Scheuing sought him out, that
they prayed together, and that he enrolled Scheuing in a Bible
study. (R. 1108-19.) The testimony that defense counsel
elicited from Donald Frye (R. 1094-1100), along with the jail
records that counsel entered into evidence (C. 516-38),
directly contradicted their attempt to prove that Scheuing had
changed since the crime. On cross-examination of Richard
Green, the prosecution pointed out this contradiction for the
jury. (R. 120 ('When he stabbed Donald Frye 87 times could

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it have been witnessing to him?').) On rebuttal, the
prosecution entered into evidence testimony regarding the jail
altercation and then played the video of the altercation for the
jury. (R. 1213-24.)"

(Scheuing's brief, pp. 32-34.)

The circuit court dismissed the claim Scheuing raised in his third-

amended petition as follows:

"The penalty-phase strategy that Scheuing's trial
counsel pursued included presenting evidence to demonstrate
to the jury and the circuit court that Scheuing did well in
structured environments. Scheuing condemns his counsel as
ineffective for presenting conflicting evidence, such as records
from his time in prison in Georgia and records of his time in
jail awaiting trial. Scheuing also contends that his counsel
were ineffective for calling Donald Frye to testify about an
incident at the Calhoun County Jail during which Scheuing
stabbed Frye multiple times with a pen.

"The Eleventh Circuit has held that '[o]penness in a jury
trial is a move that can pay off. We have previously
recognized the reasonableness of being forthcoming with the
jury.' Walls v. Buss, 658 F.3d 12741 1279 (11th Cir. 2011). It
is clear to this Court that Scheuing's trial counsel were aware
that the State was entitled to present evidence to disprove the
existence of mitigating circumstances on which Scheuing
might rely and made the strategic decision to present the
evidence first in the hope of lessening its impact on the jury.
This Court finds that this strategy was objectively reasonable
under the circumstances and did not constitute deficient
performance on the part of Scheuing's counsel nor was it
prejudicial to him. See State v. White, 693 N.E.2d 772, 779-
80 (Ohio 1998) (holding that defense counsel's strategy of
eliciting and allowing testimony of the defendant's prior bad
acts in an attempt to 'lessen the blow' of the evidence 'was

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sound and did not amount to ineffective assistance of
counsel'); see also Martin v. State, 265 S.W.3d 435, 445 (Tex.
Crim. App. 2007) ('Because it also appears that appellant's
candor before the jury concerning his prior convictions was a
strategic attempt to appear open and honest, and to lessen the
impact of any impeachment on the issue, we cannot conclude
that his counsel provided ineffective assistance with regard to
the introduction of these convictions.")."

(C. 1243-44 (some citations omitted).)

On appeal, Scheuing reiterates the allegations he raised in his

petition. But Scheuing does not address the reasons the circuit court

gave in its order for summarily dismissing this claim. This Court has

held that similar failures of argument do not comply with Rule 28(a)(10),

Ala. R. App. P., and constitute a waiver of the underlying postconviction

claim. See, e.g., Woodward, 276 So. 3d at 746. In this section of his

appellate brief, he did not state what "coherent mitigation theory" should

have been presented, how the complained of testimony could have been

precluded from being admitted into evidence, or why the trial court was

incorrect in holding that counsel followed a reasonable trial strategy.

Although he cites some legal authority in a preliminary and related

section of his brief that accurately reflects trial counsel's obligation to

investigate penalty phase issues in a capital murder trial, he cites no

legal authority supporting his argument that the alleged failure to

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present a "coherent mitigation theory" should result in Scheuing being

granted relief. Because Scheuing's argument on appeal does not comply

with Rule 28(a)(10), Ala. R. App. P., he has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. As Scheuing alleged in his petition and

as the circuit court noted in its order dismissing this claim, Scheuing's

trial counsel's mitigation strategy was based, in part, on showing that

Scheuing did well in a structured environment. As the circuit court

pointed out, doing so opened the door for the State to present rebuttal

evidence that Scheuing had stabbed Donald Frye, an inmate in the

Calhoun County jail. Instead of allowing the State to present testimony

from Frye about the stabbing, Scheuing's counsel made the decision to

call Frye and to be open and honest with the jury about Scheuing's

encounter with Frye.

During Frye's testimony, Frye said that Scheuing had stabbed him

87 times with an ink pen, but he admitted that he had instigated it by

telling Scheuing that Scheuing "ain't no killer, there ain't no guns in

here." (Record in CR-10-1454, R. 1096-97.) Frye also explained that he

should not have been out of his cell at the same time as Scheuing when

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the attack occurred because the jail unit was only supposed to allow one

cell open at a time for a one-hour period, and that Scheuing and Frye

were in different cells. Frye said that they were only out at the same

time because of "neglect of the officer"; "they forgot to lock him down or

didn't lock him down before they let me out." (Record in CR-10-1454, R.

1098-99.) In other words, it was a failing of institutional structure that

led to the stabbing. Scheuing's counsel also referenced Scheuing's having

stabbed Frye in the penalty-phase closing argument and attempted to

explain to the jury that Richard Green's testimony showed that Scheuing

is "not the Jesse Scheuing that stabbed somebody 87 times." (Record in

CR-10-1454, C. 1256.) Rather, Scheuing had changed.

Although Scheuing's Rule 32 counsel alleged that his trial counsel's

strategy of being open and honest about Scheuing's having stabbed Frye

in jail was ineffective and undermined their mitigation case, as the

circuit court explained, openness and honesty may be a reasonable

strategic choice:

"Openness in a jury trial is a move that can pay off. We have
previously recognized the reasonableness of being
forthcoming with the jury. See Straight v. Wainwright, 772
F.2d 674, 681 (11th Cir. 1985) (counsel was not ineffective for
failing to object to a question on cross-examination, where
counsel was pursuing a plan of being 'truthful and open' with

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the jury). Moreover, we have recognized that it can be
reasonable to let incriminating evidence come to the jury's
attention. See Atkins v. Singletary, 965 F.2d 952, 960 (11th
Cir. 1992) (in a prosecution for the kidnapping, sexual
battery, and murder of a six-year old boy, counsel was not
ineffective for allowing prosecutors to put into evidence the
male defendant's confession to sexual relations with 45 boys
and young men, where counsel's plan was to 'bring into play
[the defendant's] sexual proclivities')."

Walls v. Buss, 658 F.3d 1274, 1279 (11th Cir. 2011). What is more,

Scheuing did not adequately plead any facts showing that he was

prejudiced by his counsel's decision to call Frye to testify. Thus, the

circuit court did not err when it summarily dismissed this claim.

I.B.2.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate and present a basis for a sentence of life at the

penalty and sentencing phases of [his] trial." (Scheuing's brief, p. 34.)

According to Scheuing, his trial counsel "interviewed Robert

Scheuing, Marilynn Scheuing, Timothy Scheuing, and Roberta Scheuing

together but failed to conduct adequate follow-up interviews."

(Scheuing's brief, p. 35.) Scheuing also said that, although his counsel

interviewed Trevor Atkins and Michael Atkins, who lived next door to

Scheuing, the interview occurred in the presence of Robert Scheuing

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(Scheuing's father). Scheuing said that, if his counsel had spoken with

Trevor without Robert being present, "he would have informed counsel

that while Marilynn and Robert Scheuing might have claimed to be good

parents, they were just the opposite." (Scheuing's brief, pp. 35-36.)

Scheuing also said that his trial counsel "failed to contact

mitigation witnesses who were available and willing to testify, including

Sarah Counts, John Renn, Zachary Donner, Spencer Davis, Dustin

Helms, Mills Horn, Sandy Chambers, Lisa Fesperman, Kay Cook, Jack

Loftin, Randy Yonz, Robert Kline, Betsy Clark, Brenda Luke, Janet

Zimmerman, Jeffrey Helms, Anina Davis, Irene Shadron, Tara Atkins,

and Peggy Ray." (Scheuing's brief, p. 36.) As to these people, Scheuing

says that they would have testified as follows:

" Zachary Donner could have testified that Scheuing’s
mother seemed to hate him and that Scheuing would live with
Donner during the summer months.

" Dustin Helms -- childhood friend who could have
testified that Scheuing's childhood home was filthy and
disgusting. Scheuing's bed was two boards.

" Anina Davis, mother of a childhood friend could have
testified about the lack of supervision and loving home.

" Irene Shadron, neighbor who testified that Scheuing
would go over there to seek attention and was very good to
her.

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" Mills Horn -- could have testified that Scheuing's
stepfather also hated him and would severely beat him.

" Sandy Chambers, school official, would have testified
that this was not a stable or loving family.

" Kay Cook, Scheuing's math and reading teacher could
have testified to his academic potential.

" Jack Loftin, Technology teacher could have testified
that Scheuing never got into a fight.

" Betsy Clark would have testified that he was mostly
in special education classes.

" Janet Zimmerman, who supervised Scheuing at the
Youth Challenge Academy.

" Trevor Atkins -- knew Scheuing when he first was
released from prison. Knew that Scheuing had a girlfriend,
April Musgrove. Trevor could testify this person was playing
Scheuing.

" Tara Atkins could have testified to Scheuing having a
girlfriend who may have miscarried.

" Sarah Counts -- could have testified that Scheuing's
girlfriend was lying about the pregnancy and miscarriage to
get money from him.

" Michael Atkins -- could have testified that he lived
with Scheuing upon his release from prison. He also felt April
was using Scheuing.

(Scheuing's brief, pp. 36-38.)

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Although Scheuing makes these above-listed allegations in his brief

on appeal, which reiterates the allegations he raised in his third-

amended petition, Scheuing does not address the reasons the circuit court

gave in its order for summarily dismissing this claim of ineffective

assistance of counsel. In fact, Scheuing does not mention the circuit

court's order in his argument on appeal. As previously noted, this Court

has held that similar failures render a brief noncompliant with Rule

28(a)(10), Ala. R. App. P., and constitute a waiver of the underlying

postconviction claim. See, e.g., Woodward, 276 So. 3d at 746.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. The circuit court summarily dismissed

Scheuing's claim of ineffective assistance of counsel as follows:

"On pages 53-55 of Scheuing's petition, he claims that
his trial counsel were ineffective for not interviewing his
siblings and his friend outside the presence of Scheuing's
parents. (Doc. 77 at 54-56.)

"When a petitioner claims that his trial counsel were
ineffective for failing to properly interview witnesses, the
petitioner is required to state facts in his petition showing
that the failure ' "resulted in counsel's ignorance of valuable
evidence which would have substantially benefitted the
accused.' " Walker v. State, 194 So. 3d 253, 292 (Ala. Crim.
App. 2015) (citation omitted). Scheuing fails to proffer in his
petition what specific information his siblings and friend
would have disclosed to his counsel if they had been

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interviewed outside the presence of his parents. Scheuing
also fails to state in his petition why there is a reasonable
probability that testimony from these individuals, if
presented during the penalty phase of trial, would have been
so compelling it would have caused a different outcome.
Scheuing fails to proffer any specific facts in his petition that,
if true, would demonstrate his counsel's performance was
deficient and caused him to be prejudiced. See Mashburn v.
State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013)
('Speculation is not sufficient to satisfy a Rule 32 petitioner's
burden of pleading.').

"....

"On page 55 of Scheuing's petition, he claims that his
trial counsel were ineffective for not contacting his biological
half-sister and her ex-husband. (Id. at 56.) Scheuing
contends that they took him in because his adoptive mother
demeaned him, kicked him out of the house, and that
Scheuing was otherwise ignored by his adoptive parents. On
page 56 of Scheuing's petition, he claims that his counsel were
ineffective for not contacting more of his friends. (Id. at 57.)
He also contends these individuals would have testified that
the Scheuing household was a 'chaotic and disturbing' place
and that Scheuing was bullied and demeaned at home and at
school. (Id.) Scheuing also claims on pages 57-58 of his
petition that his counsel were ineffective for not contacting
certain former teachers and administrators. He contends
these individuals would have testified that he struggled in
school and had a difficult home life. (Id. at 58- 59.) On pages
58-59 of his petition, Scheuing claims that his counsel were
ineffective for not contacting other individuals, including
some of his former teachers and neighbors. (Id. at 59-60.)

" ' "There is ... no per se rule that failure to interview
witnesses constitutes ineffective assistance. Ineffective
assistance cases turn on their individual facts." ' Benjamin v.
State, 156 So. 3d 424, 441-42 (Ala. Crim. App. 2013) (citation

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omitted). Additionally, '[t]he Constitution imposes no burden
on counsel to scour a defendant's background for potential
abuse given the defendant's contrary representations or
failure to mention the abuse.' Stewart v. Sec'y, Dept. of Corr.,
476 F.3d 1193, 1211 (11th Cir. 2007).

"Joanne Terrell, an experienced mitigation
investigation specialist that was retained by Scheuing's trial
counsel, stated in her written report that Scheuing
characterized his childhood with his adoptive family as 'quiet,
comfortable, and middle class.' (C. 419.) Scheuing also told
Ms. Terrell that he and his adoptive mother were 'close' and
that his adoptive father was his 'best friend.' Id. There was
nothing in Ms. Terrell's report indicating that anyone in the
Scheuing household, including Scheuing, had ever reported
that he was mistreated by his mother. See Newland v. Hall,
527 F.3d 1162, 1202 (11th Cir. 2008) ('In evaluating the
reasonableness of a defense attorney's investigation, we
weigh heavily the information provided by the defendant.').

"While Scheuing reported to Ms. Terrell that he was
bullied at school, there was nothing in her report indicating
that Scheuing, or any of his siblings, disclosed to his trial
counsel or Ms. Terrell that Scheuing had been bullied or
otherwise mistreated at home. In addition, rather than argue
that Scheuing's childhood problems were due to being bullied
at school, his counsel presented evidence proving that
Scheuing was diagnosed with ADHD and conduct disorder
and was not properly treated because his adoptive mother
believed that his behavioral problems were caused by Fetal
Alcohol Syndrome.

"Just because Scheuing's trial counsel did not present
every possible detail about his childhood that he now believes
they should have does not demonstrate counsel's performance
was deficient and prejudicial. See Tanzi v. Secy, Dept. of
Corr., 772 F.3d 664, 659 (11th Cir. 2014) (' "[C]ounsel is not
required to present all mitigation evidence, even if the

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additional mitigation evidence would not have been
incompatible with counsel's strategy. Counsel must be
permitted to weed out some arguments to stress others and
advocate effectively.' ") (citation omitted)."

(C. 1245-49.) We agree with the circuit court's judgment.

As set out above, Scheuing alleged in his third-amended petition

that the above-mentioned individuals would have testified, among other

things, that Scheuing's home life with his parents was not as good as it

seemed. But, as the circuit court pointed out, Scheuing told Joanne

Terrell, the hired mitigation specialist, that his home life was " 'quiet,

comfortable, and middle class.' " (C. 1248 (citation omitted).) Although

Scheuing alleged in his third amended petition that his counsel were

ineffective for failing to investigate and present evidence of his difficult

home life, this Court has held that

" ' "[t]he reasonableness of counsel's actions
may be determined or substantially influenced by
the defendant's own statements or actions.
Counsel's actions are usually based, quite
properly, on informed strategic choices made by
the defendant and on information supplied by the
defendant. In particular, what investigation
decisions are reasonable depends critically on such
information." '

"Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App.1999).
'[T]he scope of the duty to investigate mitigation evidence is
substantially affected by the defendant's actions, statements,

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and instructions. As the Supreme Court explained in
Strickland, the issue of what investigation decisions are
reasonable "depends critically" on the defendant's
instructions....' Cummings v. Secretary, Dep't of Corr., 588
F.3d 1331, 1357 (11th Cir. 2009)."

James v. State, 61 So. 3d 357, 364 (Ala. Crim. App. 2010). Scheuing's

trial counsel were not constitutionally ineffective for failing to investigate

and present evidence of Scheuing's difficult home life when Scheuing had

described his home life to Terrell as " 'quiet, comfortable, and middle

class.' " (C. 1248 (citation omitted).)

Furthermore, as set out above, Scheuing claimed that his counsel

were ineffective for failing to interview people and to investigate and

present evidence of Scheuing's issues at school, at "Youth Challenge

Academy," and his relationship with April Musgrove. This Court has

explained that,

" '[w]hen claims of ineffective assistance of
counsel involve the penalty phase of a capital
murder trial the focus is on " 'whether "the
sentencer ... would have concluded that the
balance of aggravating and mitigating
circumstances did not warrant death." ' " Jones v.
State, 753 So. 2d 1174, 1197 (Ala. Crim. App.
1999), quoting Stevens v. Zant, 968 F.2d 1076,
1081 (11th Cir. 1992). See also Williams v. State,
783 So. 2d 108 (Ala. Crim. App. 2000). An
attorney's performance is not per se ineffective for
failing to present mitigating evidence at the

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penalty phase of a capital trial. See State v. Rizzo,
266 Conn. 171, 833 A.2d 363 (2003); Howard v.
State, 853 So. 2d 781 (Miss. 2003), cert. denied,
540 U.S. 1197 (2004); Battenfield v. State, 953
P.2d 1123 (Okla. Crim. App. 1998); Conner v.
Anderson, 259 F. Supp. 2d 741 (S.D. Ind. 2003);
Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002);
Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002),
cert. denied, 123 S. Ct. 1911 (2003); Hayes v.
Woodford, 301 F.3d 1054 (9th Cir. 2002); and Hunt
v. Lee, 291 F.3d 284 (4th Cir.), cert. denied, 537
U.S. 1045 (2002).'

"Adkins v. State, 930 So. 2d 524, 536 (Ala. Crim. App. 2001)
(opinion on return to third remand). As we also stated in
McWilliams v. State, 897 So. 2d 437, 453-54 (Ala. Crim. App.
2004):

" ' "Prejudicial ineffective assistance of
counsel under Strickland cannot be established on
the general claim that additional witnesses should
have been called in mitigation. See Briley v. Bass,
750 F.2d 1238, 1248 (4th Cir. 1984); see also
Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.
1990). Rather, the deciding factor is whether
additional witnesses would have made any
difference in the mitigation phase of the trial."
Smith v. Anderson, 104 F. Supp. 2d 773, 809 (S.D.
Ohio 2000), aff'd, 348 F.3d 177 (6th Cir. 2003).
"There has never been a case where additional
witnesses could not have been called." State v.
Tarver, 629 So. 2d 14, 21 (Ala. Crim. App. 1993).' "

Hunt v. State, 940 So. 2d 1041, 1067-68 (Ala. Crim. App. 2005).

In his third amended petition, Scheuing set out the list of people he

said his counsel should have interviewed and a brief explanation of what

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those people would have testified to during the penalty phase. As for how

he was prejudiced by his counsel's failure to interview these potential

witnesses, Scheuing alleged:

"Trial counsel's failure to adequately investigate and
present mitigating evidence resulted in prejudice to Mr.
Scheuing, requiring this Court to reverse his sentence.
Strickland, 466 U.S. at 687, 692; Williams [v. Taylor], 529
U.S. [362,] 396-97 [(2000)]. Despite counsel's ineffective
investigation and presentation, two jurors recommended that
Mr. Scheuing be sentenced to life without parole. Had counsel
conducted an adequate investigation, they could have
gathered compelling mitigating evidence regarding Mr.
Scheuing's experiences as an infant, in the Scheuing
household, and in school. Counsel's errors, individually and
collectively, denied Mr. Scheuing effective assistance of
counsel in violation of Article I, Sections 6, 8, and 5 of the
Alabama Constitution, and the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
But for counsel's deficient performance, the outcome of Mr.
Scheuing's trial would have been different.

"Despite the inadequate mitigation presentation, the
jury nevertheless refused to unanimously return a death
verdict. During the judicial sentencing phase, trial counsel
failed to proffer any additional evidence; indeed, counsel
barely made an argument as to why the jury's verdict was
correct and that Mr. Scheuing should be sentenced to life
without the possibility of parole. The Eleventh Circuit Court
of Appeals has held that the 'relative weakness of the state's
death penalty case is underscored by the fact that the jury
recommended a life sentence,' and where 'the jury decisively
voted against the death penalty ... it weighs heavily in favor
of a finding of prejudice,' in an ineffectiveness claim. Williams
v. Allen, 542 F.3d 1326, 1343 (11th Cir. 2008). The same is
true in Mr. Scheuing's case.

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"Counsel's failure to investigate and adequately present
evidence at the penalty phase of Mr. Scheuing's trial
prejudiced him. Had the jury and judge been presented with
the readily available facts from Mr. Scheuing's background,
there is a reasonable probability that Mr. Scheuing would not
have received a death sentence. Strickland, 466 U.S. 668. See
also Daniels [v. State], 650 So. 2d [544,] at 552 [(Ala. Crim.
App. 1994)]; Hyde [v. State], 950 So. 2d. [344,] 355-56 [(Ala.
Crim. App. 2006)]."

(C. 920-21.)

Here, Scheuing's claim that he was prejudiced by his counsel's

failure to interview the above-named witnesses does not adequately set

out a full factual basis of prejudice under Rule 32.3 and Rule 32.6(b), Ala.

R. Crim. P., and does not adequately explain how testimony from these

witnesses that would have contradicted Scheuing's own statement to his

mitigation specialist (and thus weakened Terrell's testimony) would have

changed the balance of how the sentencer in this case would have

weighed the aggravating and mitigating circumstances. Accordingly, the

circuit court did not err in dismissing this claim.

I.B.3.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate or present evidence regarding [his] significant

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struggles with mental illness to the jury and judge." (Scheuing's brief, p.

38.) The totality of Scheuing's argument on appeal is as follows:

"Uncontested evidence that Mr. Scheuing suffered from
a 'serious psychological disease' -- while not rendering him not
guilty by reason of mental disease or defect -- was certainly a
mitigating circumstance that should have been fully
considered and weighed by the trial court. See Porter v.
McCollum, 558 U.S. 30, 40 (2009) (reversing where jury
deprived of mitigating evidence of mental illness); Brewer v.
Quarterman, 550 U.S. 286, 289-90, 294, 296 (2007) (reversing
where jury precluded from considering evidence of mental
illness); Rompilla v. Beard, 545 U.S. 374, 391-93 (2005)
(reversing where jury deprived of evidence of mental illness);
Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982) (reversing
death sentence where state trial and appellate courts gave
'relevant mitigating evidence' concerning mental illness 'no
weight by excluding such evidence from their consideration').

"As mentioned above, Mr. Scheuing almost certainly has
Fetal Alcohol Syndrome. He also reports multiple head blows
that left scars on him. Mr. Scheuing has troubles moving
short-term memories into his long-term memory. His awful
experiences with his birth mother and Marilynn Scheuing
most certainly left him with attachment disorders."

(Scheuing's brief, pp. 38-39.)

Scheuing's two-paragraph "argument," which is taken verbatim

from the claim raised in his third amended Rule 32 petition (see C. 921-

22), cites only general propositions of law, fails to cite the record on

appeal, and does not address the reasons the circuit court gave in its

order for summarily dismissing this claim. The trial court correctly held

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that Scheuing failed to identify what "evidence" his counsel should have

obtained and that he did not "name any qualified mental health expert

that was available and willing to testify at his trial that Scheuing suffers

from Fetal Alcohol Syndrome, abnormalities with attachments, or any

other serious mental illness." (C. 1258-59.) In short, not only is

Scheuing's argument without merit, it does not satisfy Rule 28(a)(10),

Ala. R. App. P. Thus, Scheuing has waived his argument. See, e.g.,

Woodward, 276 So. 3d at 746 (holding that Woodward's argument on

appeal did not satisfy Rule 28(a)(10) and was, therefore, deemed waived

when he "reassert[ed] this claim from his petition, but he ma[de] no

argument regarding why he believe[d] the circuit court's findings were

incorrect").

I.B.4.

Scheuing argues that his counsel were ineffective for "fail[ing] to

challenge the State-appointed psychologist's pretrial diagnosis of Anti-

Social Personality Disorder." (Scheuing's brief, p. 39.) The totality of

Scheuing's argument on appeal is as follows:

"Mr. Scheuing pretrial mental evaluation determined
that he had an Anti-Social Personality Disorder ('ASPD')
erroneously. Mr. Scheuing cannot have ASPD because he
suffers from bipolar disorder. And a person cannot have

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ASPD while suffering from organic brain damage from Fetal
Alcohol Syndrome. See American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders, 662
(5th ed. 2013).

"The Fourteenth Amendment's Due Process Clause also
forbids the State from using this unscientific evidence masked
as medical science. See, e.g., Gimenez v. Ochoa, 821 F.3d 1136
(9th Cir. 2016); Lee v. Superintendent, 798 F.3d 159 (3d Cir.
2015).

"Because the State's psychologist made this diagnosis
and submitted it to the Court, it was part of the Record. The
trial judge is presumed to know and consider the Record when
making decisions in a case, so the court considered this
evidence when overriding the jury’s verdict of life. This
evidence was highly prejudicial and entitles Mr. Scheuing to
sentencing relief."

(Scheuing's brief, pp. 39-40.)

Scheuing's argument, which is a verbatim copy of the claim he

raised in his third amended Rule 32 petition (see C. 923-24), does not cite

the record on appeal and does not address the reasons the circuit court

gave in its order for summarily dismissing this claim. Thus, Scheuing's

argument does not satisfy Rule 28(a)(10), Ala. R. App. P., and is waived

for appellate review. See, e.g., Woodward, 276 So. 3d at 746.

Even if Scheuing's argument had satisfied Rule 28(a)(10), his

argument is without merit. The circuit court summarily dismissed this

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claim regarding counsel's failure to contest his anti-personality disorder

diagnoses as insufficiently pleaded, finding as follows:

"On pages 96-97 of Scheuing's petition, he claims that
his trial counsel failed to challenge testimony from Dr. Glen
King that he met the diagnostic criteria for Anti-Social
Personality Disorder. (Doc. 77 at 97-98.)

"Scheuing fails to identify in his petition by name any
qualified mental health expert that was available and willing
to testify at his trial that Scheuing suffers from bipolar
disorder or organic brain damage due to Fetal Alcohol
Syndrome. See Brooks, [340 So. 3d 410, 437 (Ala. Crim. App.
2020)]. Scheuing also fails to explain in his petition why such
testimony would have challenged Dr. King's testimony that
he met the diagnostic criteria for Anti-Social Personality
Disorder (ASPD) or why it is allegedly impossible to diagnose
someone with both ASPD and bipolar disorder."

(C. 1259-60.) We agree with the circuit court.

Although Scheuing made general allegations that his counsel

should have challenged Dr. King's testimony about his diagnosis of Anti-

Social Personality Disorder because, he says, he "cannot have ASPD

because he suffers from bipolar disorder" and "a person cannot have

ASPD while suffering from organic brain damage from Fetal Alcohol

Syndrome," Scheuing alleged no facts establishing how his counsel would

have shown that Dr. King's diagnosis was incorrect, how his counsel

would have shown that he has bipolar disorder, or how his counsel would

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have shown how it is impossible for a person to be diagnosed with both

Anti-Social Personality Disorder and bipolar disorder. As the circuit

court found, Scheuing failed to identify by name any person his counsel

should have called to testify about the above-mentioned claims. Thus, as

the circuit court correctly found, Scheuing's claim was insufficiently

pleaded and he is not entitled to relief on this claim.

I.B.5.

Scheuing argues that his counsel were ineffective "during opening

argument of the penalty phase." (Scheuing's brief, p. 40.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective during "opening arguments." (C. 924.) First, Scheuing

alleged that, during the State's penalty-phase opening statement, the

State told the jury that it was going to present two aggravating

circumstances (namely, that the offense was committed during a robbery

and that Scheuing committed the offense while under a sentence of

imprisonment) and that the State informed the jury that Scheuing "had

been convicted of several felony counts in Georgia." (C. 234.) In response,

Scheuing said that his counsel

"told the jury that [Scheuing] had gotten in trouble for
stealing cars in Georgia; that he had served time in prison;

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and that he had been charged with escape. All these
undoubtedly aggravating instances were irrelevant to any of
the aggravating circumstances and thus inadmissible at trial.
Later in the opening statement, when defense counsel read
through the possible aggravating circumstances, counsel once
again mentioned the car thefts and stated that they were not
relevant to the aggravating circumstances. Had counsel not
introduced these facts to the jury during its opening
argument, and had counsel objected when the prosecution
tried to mention these facts, the jurors would not have been
aware of [Scheuing's] prior crimes and thus they would not
have considered them during their deliberations."

(C. 924-25 (citations omitted).)

Second, Scheuing alleged that his counsel were ineffective during

their penalty-phase opening statements because

"counsel also did not attempt to explain how any of the
mitigating circumstances affected [Scheuing]. Counsel
repeatedly promised the jury that 'Joann Terrell, the
mitigating expert, will explain to you how that has an effect
on someone and certainly how it had an effect on [Scheuing].'
In fact, Ms. Terrell would struggle to explain to the jury how
the mitigating factors affected [Scheuing]."

(C. 925 (citations omitted).) Scheuing claimed that, if his counsel had

"outlined a coherent mitigation narrative, and explained how the

evidence would mitigate [Scheuing's] culpability, there is a reasonable

probability that [he] would not have been sentenced to death." (C. 925-

26.)

This circuit court dismissed this claim as follows:

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"The prosecutor informed Scheuing's trial counsel
during a pretrial hearing that the State would present
evidence during the penalty phase to prove that he was on
parole at the time of the murder to establish an aggravating
circumstance. Rather than have jurors wonder or speculate
about what crimes Scheuing had committed in Georgia that
landed him on parole, his counsel informed them that he had
been convicted of nonviolent crimes. See Straight v.
Wainwright, 772 F.2d 674, 681 (11th Cir. 1985) (counsel was
not ineffective for failing to object to a question on cross-
examination, where counsel was pursuing a plan of being
'truthful and open' with the jury). This Court finds that
Scheuing's counsel's performance was neither deficient nor
prejudicial.

"This Court finds that this ineffectiveness claim is
without merit; therefore, it is denied. Rule 32.7(d), ALA. R.
CRIM. P.

"Scheuing also asserts that his trial counsel were
ineffective for failing to explain, or have Ms. Terrell
adequately explain, to the jury how the mitigating
circumstances affected him. Scheuing fails, however, to
proffer in his petition specifically what his counsel should
have said during opening statements or what Ms. Terrell
should have said during her testimony. He also fails to
specifically plead in his petition why there is a reasonable
probability the outcome would have been different if his
counsel or Ms. Terrell had made additional or different
statements during the penalty phase of his trial. See Van Pelt
v. State, 202 So. 3d 707, 735 (Ala. Crim. App. 2015) ('Van Pelt
fails to allege with any specificity what counsel should have
argued and how those particular arguments would have
changed the result of his trial.').

"This Court finds that this ineffectiveness claim is
deficiently pleaded; therefore, it is summarily dismissed. Rule
32.7(d), ALA. R. CRIM. P."

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(C. 1260-62 (some citations omitted).)

The circuit court properly dismissed this claim of ineffective

assistance of counsel. This Court has explained:

"In People v. Leeper, 317 Ill. App. 3d 475, 251 Ill. Dec.
202, 740 N.E.2d 32 (2000), the Illinois Court of Appeals made
the following observations concerning an attorney's
performance during opening statements:

" '[Counsel] made only a perfunctory opening
statement and closing argument. Counsel is not
required by law to make an opening statement at
all. Pietsch v. Pietsch, 245 Ill. 454, 456-57, 92 N.E.
325, 326 (1910). [Counsel's] opening statement
was short; however, it explained what [counsel], in
his professional judgment, thought was necessary.
Specifically, [counsel] explained that the burden of
proof was on the State and suggested that the jury
listen carefully to both versions of the events.
[Counsel's] closing argument was also short, but in
light of the amount of evidence presented, it was
satisfactory. Counsel is given great latitude in his
or her closing argument to the jury. Black v.
Laggren, 313 Ill. App. 3d 39, 44, 245 Ill. Dec. 851,
728 N.E.2d 1208, 1213 (2000). [Counsel's] closing
argument again outlined the burden of proof and
focused on a close analysis of the jury instructions.
The contents of the opening statement and closing
argument clearly lie within the professional
judgment of counsel and, thus, cannot support a
claim of ineffective assistance of counsel.'

"317 Ill. App. 3d at 484, 251 Ill. Dec. 202, 740 N.E.2d at 40.
See also Gregory G. Sarno, Annotation, Adequacy of Defense

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Counsel's Representation of Criminal Client Regarding
Argument, 6 A.L.R. 4th 16 (1981)."

Washington v. State, 95 So. 3d 26, 54 (Ala. Crim. App. 2012) (emphasis

added).

In addition, although Scheuing alleged that his counsel were

ineffective during the penalty-phase opening statement for revealing to

the jury what offenses he was on parole for in Georgia, the United States

Court of Appeals for the Eleventh Circuit has explained that openness

and honesty may be reasonable strategic choices, holding that

"[o]penness in a jury trial is a move that can pay off. We have
previously recognized the reasonableness of being
forthcoming with the jury. See Straight v. Wainwright, 772
F.2d 674, 681 (11th Cir. 1985) (counsel was not ineffective for
failing to object to a question on cross-examination, where
counsel was pursuing a plan of being 'truthful and open' with
the jury). Moreover, we have recognized that it can be
reasonable to let incriminating evidence come to the jury's
attention. See Atkins v. Singletary, 965 F.2d 952, 960 (11th
Cir. 1992) …"

Walls v. Buss, 658 F.3d 1274, 1279 (11th Cir. 2011).

In dismissing Scheuing's claim that his counsel were ineffective for

revealing during penalty-phase opening statement the prior convictions

that led to Scheuing's being on parole, the circuit court found counsel's

approach to be a reasonable one because, "[r]ather than have jurors

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wonder or speculate about what crimes Scheuing had committed in

Georgia that landed him on parole, his counsel informed them that he

had been convicted of nonviolent crimes." (C. 1260-61.) We agree with

the circuit court's conclusion.

We also note that Scheuing appears to assume that his prior

convictions were "irrelevant to any aggravating circumstances and thus

inadmissible at trial" because they did not involve "violence" (Scheuing's

brief, p. 42), but he does not explain how he reaches this conclusion. He

cites three cases that purportedly support this conclusion, but two of

those cases do not appear to address this issue. The third case, Knight

v. State, 907 So. 2d 470 (Ala. Crim. App. 2004), supports the opposite

conclusion. Knight had been convicted of two prior nonviolent felonies

for receiving stolen property and theft of property, and this Court held

that, based upon Knight's being on probation for those offenses when he

committed capital murder, the trial court correctly found that "[f]or

purposes of § 13A-5-49 (1), Ala. Code 1975, Knight was under a sentence

of imprisonment when he committed this offense." Id. at 483. Therefore,

Scheuing's conclusion that his prior offenses were irrelevant to any

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aggravating circumstance does not appear to be supported by the record

or by legal authority.

As to Scheuing's claim that his counsel were ineffective during

opening statements because his counsel failed "to explain how any of the

mitigating circumstances affected [Scheuing]," Scheuing did not allege

precisely what his counsel should have told the jury about how the

mitigating circumstances affected him. Because Scheuing's claim did not

satisfy the full factual-pleading requirements of Rule 32.3 and Rule

32.6(b), Ala. R. Crim. P., the circuit court did not err when it dismissed

this allegation as insufficiently pleaded.

I.B.6.

Scheuing argues that his counsel were ineffective for "fail[ing] to

subject the prosecution's penalty phase presentation to adequate

adversarial testing." (Scheuing's brief, p. 42.) The totality of Scheuing's

argument on appeal is as follows:

"The prosecution called two witnesses to the stand
during its initial penalty phase presentation. Had counsel
been effective and objected to the prosecution's irrelevant and
improper evidence, the trial court would have been required
to exclude almost the entirety of the prosecution's
presentation. Had counsel investigated and presented
available mitigating evidence regarding Scheuing's reasons
for leaving Georgia while on parole, this evidence would have

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lessened the weight the jury gave to one of the aggravating
circumstances."

(Scheuing's brief, p. 42.)

Scheuing's three-sentence "argument" falls well short of satisfying

the requirements of Rule 28(a)(10), Ala. R. App. P. Because Scheuing

makes no argument that addresses the circuit court's findings and cites

no authority as to this claim of ineffective assistance of counsel, Scheuing

has waived and abandoned this argument on appeal, and we will not

address it. See Washington v. State, 95 So. 3d 26, 75 (Ala. Crim. App.

2012) (holding that Washington's failure to comply with Rule 28(a)(10)

resulted in a waiver of his argument on appeal).

I.B.7.

Scheuing argues that his counsel were ineffective for "fail[ing] to

prevent the prosecution from introducing in admissible [sic] evidence

that was highly prejudicial." (Scheuing's brief, p. 43.)

Scheuing made the same claim in his third amended petition.

According to Scheuing, his counsel failed to object to the penalty-phase

testimony of Blake Lewis, Scheuing's parole officer, who "testified that

[Scheuing] had been convicted of twelve counts of theft by taking a motor

vehicle, eighteen counts of entering an auto, one count of escape, and one

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count of possession of a firearm by a convicted felon." (C. 926.) Scheuing

claimed that, "[b]ecause none of these offenses were violent felonies, they

were irrelevant to the aggravating circumstances and thus inadmissible."

(C. 927.) Scheuing said that, if his counsel had objected to this testimony,

"the trial court would have been obligated to sustain their objection and

prevent the prosecution from informing the jury of the nature of [his]

prior convictions." (C. 927.)

Scheuing also alleged that his counsel were ineffective when they

failed to object to Dr. Glen King's penalty-phase testimony that, he said,

"was highly prejudicial." (C. 928.) According to Scheuing, Dr. King

"testified at length about his evaluation of [Scheuing's] competency to

stand trial and his mental state and told the jury about statements

[Scheuing] made during the evaluation and his conclusions based on

those statements." (C. 927.) Scheuing said that Dr. King testified that

he had diagnosed Scheuing with "antisocial personality disorder,"

"testified to statements [Scheuing] made during the evaluation about the

charged offense, including statements about planning the charged

offense and trying to avoid apprehension, and indicated that [Scheuing]

lied about his prior criminal history." (C. 927-28 (citations omitted).)

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Scheuing claimed that Dr. King's testimony was inadmissible under Rule

11.2(2), Ala. R. Crim. P., and that, if his counsel had objected to Dr. King's

testimony, "the trial court would have been legally required to bar his

testimony and there is a reasonable probability that the outcome of the

penalty phase would have been different." (C. 928.)

Finally, Scheuing alleged that his counsel were ineffective for not

rebutting Lewis's testimony "that there was no reason for [Scheuing] to

leave Georgia while on parole there" because, he said, they "did not

adequately contact, interview, and present [Scheuing's] family, friends,

or neighbors, including Sarah Counts, Trevor Atkins, Michael Atkins,

and Tara Atkins, all of whom were available and willing to testify about

[Scheuing's] time on parole and his decision to leave Georgia." (C. 929.)

Scheuing claimed that his counsel's

"decision not to investigate and present evidence of
[Scheuing's] time on parole and his decision to leave Georgia
was unreasonable. Given that counsel knew that the
prosecution would rely on this period to establish one of the
two aggravating circumstances and that the jury would hear
about [Scheuing] leaving Georgia while on parole, it was
important for counsel to offer an explanation for why
[Scheuing] did not remain in Georgia."

(C. 932.)

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This circuit court dismissed Scheuing's claim concerning Lewis's

testimony about Scheuing's prior convictions as follows:

"First, Scheuing claims that his trial counsel were
ineffective for not objecting when his parole officer from
Georgia identified the underlying felony convictions that
Scheuing was on parole for when he left Georgia to come to
Alabama.

"As stated above, Scheuing's trial counsel's strategy
during the penalty phase, and indeed the entire trial, was to
be open and honest with the jury. To that end, Scheuing's
counsel let the jurors know that he was on parole for stealing
cars rather than have jurors wonder if he had been convicted
of some other violent offenses.

"This Court finds that this ineffectiveness claim is
without merit; therefore, it is denied."

(C. 1262-63 (citations omitted).)

The circuit court dismissed Scheuing's claim concerning Dr. King's

testimony as follows:

"Second, Scheuing claims that his trial counsel were
ineffective for not objecting when the prosecution called
psychologist Dr. Glen King to testify regarding the results of
his pre-trial mental evaluation and about statements that
Scheuing made to Dr. King concerning the offense.

" 'Objections are a matter of trial strategy, and an
appellant must overcome the presumption that "counsel's
conduct falls within the wide range of reasonable professional
assistance," that is, the presumption that the challenged
action "might be considered sound trial strategy." ' Moore v.
State, 659 So. 2d 205, 209 (Ala. Crim. App. 1994) (citation

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omitted). Scheuing's trial counsel elicited testimony from Dr.
King about the medications used to treat ADHD. Scheuing's
counsel also had Dr. King explain to the jury that in treating
ADHD it was essential for parents to take their child to the
doctor to monitor the disorder and to keep medication in the
child's system. Scheuing's counsel used the State's own
expert to support their penalty-phase theory that his adoptive
mother failed to properly have his ADHD treated which, in
turn, led to him developing antisocial personality. Scheuing's
counsel also referred to Dr. King's testimony during closing
arguments. This Court finds that Scheuing's counsel's
performance related to Dr. King was neither deficient nor
prejudicial.

"This Court finds that this ineffectiveness claim is
without merit; therefore, it is denied. Rule 32.7(d), ALA. R.
CRIM. P.

"This Court further finds that Scheuing's ineffectiveness
claim related to Dr. King testifying about statements that he
made about the offense is without merit because Scheuing's
statements to law enforcement officers in Iowa and Alabama
detailing the offense were admitted into evidence prior to Dr.
King testifying. Therefore, Dr. King's testimony concerning
statements that Scheuing made about the offense would have
been, at most, cumulative to other evidence. Any error in Dr.
King testifying about statements Scheuing made about the
offense would have been, at most, harmless. See State v.
Kerley, 260 So. 3d 891, 902 (Ala. Crim. App. 2017) ('Because
counsel's deficient performance was harmless, Kerley has not
satisfied his burden of proving that he was prejudiced as
required by Strickland.').

"This Court finds that this ineffectiveness claim is
without merit; therefore, it is denied. Rule 32.7(d), ALA. R.
CRIM. P."

(C. 1263-65 (some citations omitted).)

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As to Scheuing's claim that his counsel were ineffective because

they failed to present witnesses who could testify as to why Scheuing left

Georgia while he was on parole, the circuit court found as follows:

"Third, Scheuing claims that his trial counsel were
ineffective for not presenting testimony from certain
individuals to show why he left Georgia without permission
from his parole officer.

"Scheuing fails to cite in his petition any legal authority
indicating that testimony from his family members and
friends would have been admissible, i.e., relevant, to show
why he left Georgia without his parole officer's permission.
See Daniel [v. State], 86 So. 3d [405,] 438 [(Ala. Crim. App.
2011)] ('Counsel is not ineffective for failing to present
inadmissible evidence.'). Even assuming that such testimony
would have been admissible, Scheuing does not even attempt
to explain how or why testimony regarding his reasons for
leaving Georgia would in any way have been mitigating at the
penalty phase of his trial.

"This Court finds that this ineffectiveness claim is
deficiently pleaded; therefore, it is summarily dismissed.
Rule 32.7(d), ALA. R. CRIM. P."

(C. 1265 (some citations omitted).)

On appeal, Scheuing merely reiterates the allegations he raised in

his petition. Scheuing does not address the reasons the circuit court gave

in its order for summarily dismissing this claim. And, again, Scheuing

does not mention the circuit court's order in his argument on appeal. This

Court has held that similar failures render an appellate brief

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noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746. Because Scheuing's argument on appeal does not comply

with Rule 28(a)(10), he has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. First, the circuit court properly

dismissed Scheuing's claim that his counsel were ineffective when they

failed to object to Lewis's testimony identifying the felony offenses that

Scheuing was on parole for at the time he left Georgia and came to

Alabama. This Court has held that

"[g]enerally, 'whether to object is a matter of trial
strategy.' Davis v. State, 9 So. 3d 539, 552 (Ala. Crim. App.
2008).

" 'The fact that counsel did not object at every
possible instance does not mean that the appellant
did not receive adequate representation. O'Neil v.
State, 605 So. 2d 1247, 1250 (Ala. Cr. App. 1992).
Objections are a matter of trial strategy, and an
appellant must overcome the presumption that
"counsel's conduct falls within the wide range of
reasonable professional assistance," that is, the
presumption that the challenged action "might be
considered sound trial strategy." Strickland, 466
U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at
693 (1984).'

"Moore v. State, 659 So. 2d 205, 209 (Ala. Crim. App. 1994)."

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Clark v. State, 196 So. 3d 285, 313-14 (Ala. Crim. App. 2015).

Here, Scheuing's allegation that his counsel were ineffective for

failing to object to Lewis's testimony listing Scheuing's prior convictions

does not, as the circuit court correctly found, overcome the presumption

that his counsel made a reasonable, strategic decision not to object to

Lewis's testimony. In fact, the circuit court provided a plausible and

reasonable strategy for not objecting to Lewis's testimony -- specifically,

that his counsel wanted to "be open and honest with the jury" and "let

the jurors know that he was on parole for stealing cars rather than have

jurors wonder if he had been convicted of some other violent offenses."

(C. 1263.) Because Scheuing failed to plead facts overcoming the strong

presumption that his counsel's failure to object to Lewis's testimony was

based on trial strategy, the circuit court did not err when it dismissed

this claim. Scheuing also failed to plead adequate facts showing how he

was prejudiced by his trial counsel's alleged deficient performance.

Furthermore, Scheuing's argument regarding testimony about his

prior convictions is based on an improper premise. His one-paragraph

argument on appeal and the legal authority supporting that argument

are summarized by Scheuing as follows: "Because none of these [prior]

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offenses were violent felonies, they were irrelevant to the aggravating

circumstances. Stewart, 659 So. 2d 122; Knight, 907 So. 2d 470; Bush,

523 So. 2d 538." (Scheuing's brief, p. 43.) As noted above in relation to

Scheuing's argument that his counsel should not have mentioned his

prior offenses during the closing arguments of the penalty phase, Ex

parte Stewart, 659 So. 2d 122 (Ala. 1993), and Bush v. State, 523 So. 2d

538 (Ala. Crim. App. 1988), do not address the issue Scheuing raises on

appeal. On the other hand, Knight v. State, 907 So. 2d 470 (Ala. Crim.

App. 2004), does address the issue, but it does not support Scheuing's

conclusion that the prior convictions were inadmissible because they

were not violent offenses. If the State had attempted to prove the

aggravating circumstance that Scheuing had been "previously convicted

of another capital offense or a felony involving the use or threat of

violence to the person" as outlined in § 13A-5-49(2), Ala. Code 1975, the

nature of Scheuing's prior convictions would have been relevant. But the

State did not seek enhancement under that provision. The State proved

that Scheuing's "capital offense was committed by a person under

sentence of imprisonment" pursuant to § 13A-5-49(1), Ala. Code 1975.

Under this aggravating circumstance, it has never been required that a

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person found to be "under sentence of imprisonment" be a violent

offender. See Knight, 907 So. 2d 470, and Ex parte Burgess, 723 So. 2d

770, 772 (Ala. 1998) (noting that "[t]he 'sentence of imprisonment' that

Burgess was under at the time of the murders was a two-year suspended

sentence for … harassing communications" and that "the term 'sentence

of imprisonment,' … 'does not exclude from its scope any category of

criminal violations.' [Burgess v. State,] 723 So. 2d [742, 766 (Ala. Crim.

App. 1997).]") Therefore, the entire premise underlying this ineffective-

assistance-of-counsel claim, that his prior convictions were inadmissible

because they were not violent offenses, is incorrect.

Next, the circuit court properly dismissed Scheuing's claim that his

counsel were ineffective for failing to object to Dr. King's testimony about

the results of Scheuing's mental-health examination and about

statements Scheuing had made about the offense during that

examination. As set out above, "[g]enerally, 'whether to object is a matter

of trial strategy.' Davis v. State, 9 So. 3d 539, 552 (Ala. Crim. App. 2008)."

Clark, 196 So. 3d at 313-14. To sufficiently plead a claim that trial

counsel were ineffective for failing to object to certain testimony, a Rule

32 petitioner must plead facts to overcome the strong " 'presumption that

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"counsel's conduct falls within the wide range of reasonable professional

assistance," that is, the presumption that the challenged action "might

be considered sound trial strategy." Strickland, 466 U.S. at 687-88, 104

S. Ct. at 2064, 80 L. Ed. 2d at 693 (1984).' " Clark, 196 So. 3d at 313-14

(quoting Moore v. State, 659 So. 2d 205, 209 (Ala. Crim. App. 1994)). As

the circuit court found when it summarily dismissed Scheuing's claim

that his counsel were ineffective for failing to object to Dr. King's

testimony, Scheuing failed to overcome this strong presumption. Indeed,

as to Dr. King's testimony about Scheuing's mental-health examination,

his trial counsel "used the State's own expert to support their penalty-

phase theory that his adoptive mother failed to properly have his ADHD

treated which, in turn, led to him developing antisocial personality." (C.

1263-64.) In other words, Scheuing's trial counsel's decision not to object

to Dr. King's testimony was based on trial strategy, and Scheuing

provided the circuit court with no basis to overcome the presumption that

counsel acted within the range of reasonable professional assistance.

What is more, the circuit court correctly concluded that Scheuing's trial

counsel's failure to object to Dr. King's testimony about statements that

Scheuing had made to him about the crime did not prejudice Scheuing

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because "Scheuing's statements to law enforcement officers in Iowa and

Alabama detailing the offense were admitted into evidence prior to Dr.

King testifying. Therefore, Dr. King's testimony concerning statements

that Scheuing made about the offense would have been, at most,

cumulative to other evidence." (C. 1264.) Scheuing did not address this

finding in his briefs to this Court, and we agree with the circuit court's

findings. Because Scheuing's counsel's failure to object to Dr. King's

testimony about what Scheuing told him about the crime was, at most,

harmless, Scheuing's counsel's alleged deficient performance did not

prejudice him. See generally State v. Kerley, 260 So. 3d 891, 902 (Ala.

Crim. App. 2017) ("Because counsel's deficient performance was

harmless, Kerley has not satisfied his burden of proving that he was

prejudiced as required by Strickland. 'Harmless error does not rise to the

level of the prejudice required to satisfy the Strickland test.' Gaddy v.

State, 952 So. 2d 1149, 1160 (Ala. Crim. App. 2006).").

Finally, the circuit court properly dismissed Scheuing's claim that

his counsel were ineffective because they failed to present witnesses who

could testify as to why Scheuing left Georgia while he was on parole.

Indeed, although Scheuing alleged that his counsel should have called

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several witnesses who he says "were available and willing to testify about

[his] time on parole and his decision to leave Georgia" "to lessen the

weight of the aggravating circumstances" that he was "under a sentence

of imprisonment when he committed the offense" (C. 928-29), as the

circuit court correctly found, Scheuing pleaded no facts showing how this

testimony would have been admissible at his sentencing hearing or how

that evidence would have actually been mitigating. What is more,

although Scheuing claimed in his third-amended petition that his

counsel's failure to present this evidence was "unreasonable," (C. 932),

Scheuing did not plead any facts showing how he was prejudiced by his

counsel's failure to present that evidence. Accordingly, the circuit court

did not err in dismissing these claims.

I.B.8.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the trial court's erroneous jury instructions." (Scheuing's brief,

p. 46.)

In his third amended petition, Scheuing alleged that his trial

counsel were ineffective during the penalty phase when they did not

object to the trial court's penalty-phase instructions about the weighing

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of aggravating and mitigating circumstances. (C. 941.) Specifically,

Scheuing claimed:

"Alabama Code [1975,] § 13A-5-46(e)(2)[,] requires a
recommendation of life imprisonment without parole 'if the
jury determines that one or more aggravating circumstances
... exist but do not outweigh the mitigating circumstances.'
Alabama Code [1975,] § 13A-5-46(e)(3)[,] allows a
recommendation of death only if 'the jury determines that one
or more aggravating circumstances ... exist and that they
outweigh the mitigating circumstances.' Each of the three
times the court discussed the weighing process; however, it
merely instructed the jury to weigh the aggravating and
mitigating circumstances against each other, without
providing the guidance required by the Code on how jurors
should vote once they complete the weighing process. (R. 629,
717, 727.) The trial court's failure prevented jurors from
understanding when they should recommend a sentence of
life or death. See, e.g., Ex parte McNabb, 887 So. 2d 998, 1004
(Ala. 2004); Ex parte Bryant, 951 So. 2d 724, 730 (Ala. 2002);
California v. Brown,479 U.S. 538, 541 (1987) (requiring clear
and structured instructions)."

(C. 941.) Scheuing claimed that he was prejudiced by his counsel's failure

because, he argues, had the jury been properly instructed on "how to

weigh mitigating and aggravating evidence at the penalty phase, there is

a reasonable probability that at least one more juror would have returned

a life verdict." (C. 942.)

The circuit court summarily dismissed this claim as follows:

"Scheuing raised a similar issue underlying this
ineffectiveness claim on direct appeal, arguing that the circuit

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court erred by failing to instruct jurors what to do if the
weight of the aggravating and mitigating circumstances was
equal. Scheuing, 161 So. 3d at 293. The Alabama Court of
Criminal Appeals held that the court properly instructed
jurors they could recommend a sentence of death 'only if the
aggravating circumstances outweighed the mitigating
circumstances.' Id. The Court of Criminal Appeals went on
to hold that 'no error, much less plain error, occurred.' Id.
Because there was no error in the court's penalty-phase jury
instruction concerning the process of weighing aggravating
and mitigating circumstances, Scheuing cannot demonstrate
his trial counsel's performance was deficient and that he was
prejudiced under Strickland. See Beckworth [v. State], 190
So. 3d [527,] 562 [(Ala. Crim. App. 2009)]."

(C. 1266.)

On appeal, Scheuing copies verbatim the allegation he raised in his

petition. Scheuing does not address the reasons the circuit court gave in

its order for summarily dismissing this claim. This Court finds that the

reasons provided by the circuit court in dismissing this claim were

correct. As the circuit court found, this Court addressed Scheuing's

substantive argument on appeal concerning the adequacy of the trial

court's penalty-phase instruction as to how the jury should weigh the

aggravating and mitigating circumstances. This Court explained:

"Here, during the penalty phase, the circuit court
instructed the jurors:

" 'So now then, ladies and gentlemen, if after
a full and fair consideration of all of the evidence

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in the case if you then are convinced beyond a
reasonable doubt that there is at least one
aggravating circumstance, that it exists, and you
are convinced that the aggravating circumstance
or circumstances outweigh the mitigating
circumstance or circumstances, then [death] would
be the verdict form that you would then return.'

"(R. 1298.)

" 'Now, on the other hand, ladies and
gentlemen, if after a full and fair consideration of
all of the evidence if you're not convinced beyond a
reasonable doubt that the aggravating
circumstance or circumstances outweigh the
mitigating circumstance or circumstances, if any,
your verdict then would be: "We, the jury,
recommend that the defendant, Jesse Earl
Scheuing, be punished by life imprisonment
without parole." '

"(R. 1299.)

"Here, the circuit court's instructions clearly informed
the jury that it could recommend a sentence of death only if
the aggravating circumstances outweighed the mitigating
circumstances. [Ex parte] Mills, 62 So. 3d [574,] 601 [(Ala.
2010)]. Therefore, no error, much less plain error, occurred.
See Rule 45A, Ala. R. App. P."

Scheuing, 161 So. 3d at 293.

Because this Court held that the circuit court properly instructed

the jury about weighing the aggravating and mitigating circumstances

and when it would be appropriate to impose a death sentence, Scheuing's

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counsel were not ineffective for failing to object to the circuit court's

instructions about weighing aggravating and mitigating circumstances.

See, e.g., Carruth, 165 So. 3d at 645 (holding that counsel "were not

ineffective for failing to raise a baseless objection"). Thus, the circuit

court properly dismissed this claim.

I.B.9.

Scheuing argues that his counsel were ineffective for "fail[ing] to

present evidence during the judge's sentencing phase." (Scheuing's brief,

p. 47.) The totality of Scheuing's argument on appeal -- reproduced here

verbatim -- is as follows:

"After Scheuing had received a jury verdict
recommending life without parole, the only way he would
receive a death sentence was the possibility of this Court
overriding the jury's verdict. (C. 20; R. 736.) During this
Court's sentencing hearing, trial counsel was deficient for
presenting no meaningful evidence. In sentencing Mr.
Scheuing to death, this Court failed to find extensive
mitigating evidence present in Mr. Scheuing's background.
Notably, the trial court's sentencing order made no
meaningful findings regarding the extent of Mr. Scheuing's
mental-health history; the impact of Mr. Scheuing's adoption;
Mr. Scheuing's positive community relationships; his loving
relationship with his daughter; his positive work history; or
his positive institutional record.

"Had counsel presented any additional evidence
discussed above during this Court's sentencing proceeding,
there is a reasonable probability that Mr. Scheuing would not

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have been sentenced to death. Strickland, 466 U.S. 668;
Daniels, 650 So. 2d at 552; Hyde, 950 So. 2d at 355-56."

(Scheuing's brief, pp. 47-48.)

Scheuing's argument on appeal is a verbatim copy of the claim he

raised in his third amended petition, even to the extent of retaining his

references to "this Court overriding" and "this Court's sentencing

hearing" rather than referencing the actions of the circuit court.

(Compare Scheuing's brief, pp. 47-48 with C. 942-43 (emphasis added).)

This Court has held that similar failures render an appellate brief

noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746 (holding that Woodward's argument on appeal did not

satisfy Rule 28(a)(10) and was, therefore, deemed waived when he

"reassert[ed] this claim from his petition, but he ma[de] no argument

regarding why he believe[d] the circuit court's findings were incorrect").

Because Scheuing's argument on appeal does not comply with Rule

28(a)(10), he has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. The circuit court summarily dismissed

this claim, finding that "the basis of this ineffectiveness claim is factually

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and legally incorrect" because the "record proves that the jury

recommended, by a vote of ten to two, that the circuit court sentence

Scheuing to death." (C. 1267.) We agree with the circuit court.

Scheuing's claim of ineffective assistance of counsel is premised on his

assertion that his counsel failed to present evidence to the circuit court

that would have kept it from overriding the jury's life-imprisonment-

without-parole recommendation; the jury, however, did not recommend

that Scheuing be sentenced to life imprisonment without the possibility

of parole. Rather, the jury recommended by a vote of 10 to 2 that

Scheuing be sentenced to death. Thus, Scheuing's claim of ineffective

assistance of counsel is, as the circuit court put it, "factually and legally

incorrect."

Regardless, Scheuing's claim that his counsel were ineffective for

failing to present additional or different evidence to the circuit court

during the judicial sentencing hearing is without merit. Recently, this

Court explained:

"In State v. Mitchell, [377] So. 3d [94,] at [129-30 (Ala. Crim.
App. 2022)], we held:

" '[U]nder Alabama's capital-sentencing scheme in
effect at the time of Mitchell's trial and sentencing,
this Court in Boyd v. State, 746 So. 2d 364, 398

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(Ala. Crim. App. 1999), held: "Section 13A-5-47,
Ala. Code 1975, does not provide for the
presentation of additional mitigation evidence at
sentencing by the trial court. Therefore, trial
counsel did not err in failing to do so." (Emphasis
added.) Although in Woodward v. State, 123 So.
3d 989, 1034 (Ala. Crim. App. 2011), this Court
characterized that holding in Boyd as "obiter
dictum," six months before the decision in
Woodward (and five years after Mitchell's trial),
this Court reaffirmed Boyd in Miller v. State, 99
So. 3d 349, 424 (Ala. Crim. App. 2011), quoting
with approval the following from the trial court's
order denying relief: " '[T]rial counsel could not be
ineffective for failing to present additional
mitigation evidence during the sentencing hearing
because [former] "Section 13A-5-47, Ala. Code
1975, does not provide for the presentation of
additional mitigation evidence at sentencing by
the trial court." Boyd v. State, 746 So. 2d 364, 398
(Ala. Crim. App. 1999).' " Simply put, it would not
have been unreasonable for Mitchell's counsel to
rely on this Court's holding in Boyd, and the circuit
court thus erred in concluding that trial counsel
was ineffective for not presenting additional
mitigating evidence at the separate sentencing
hearing before the trial court. Cf. State v. Tarver,
629 So. 2d 14, 18-19 (Ala. Crim. App. 1993)
("Counsel's performance cannot be deemed
ineffective for failing to forecast changes in the
law.").'

Burgess v. State, [Ms. CR-19-1040, June 23, 2023] ___ So. 3d ___,

___ (Ala. Crim. App. 2023) (footnote omitted).

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Here, Scheuing was tried in 2010, years after this Court's decision

in Boyd but before this Court's decision in Woodward characterizing Boyd

as "obiter dictum." So, as was the case in Burgess and in State v.

Mitchell, 377 So. 3d 94 (Ala. Crim. App. 2022), " 'it would not have been

unreasonable for [Scheuing's] counsel to rely on this Court's holding in

Boyd.' " Id. (quoting Mitchell, 377 So. 3d at 129). Thus, Scheuing's claim

of ineffective assistance of counsel is without merit.

I.B.10.

Finally, Scheuing argues that "cumulative effect of counsel's

deficient performance at the penalty and sentencing phases prejudiced

him." (Scheuing's brief, p. 48.) This Court has previously addressed

"cumulative-effect" arguments as follows:

" 'Taylor ... contends that the allegations
offered in support of a claim of ineffective
assistance of counsel must be considered
cumulatively, and he cites Williams v. Taylor, 529
U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).
However, this Court has noted: "Other states and
federal courts are not in agreement as to whether
the 'cumulative effect' analysis applies to
Strickland[ v. Washington, 466 U.S. 668 (1984),]
claims"; this Court has also stated: "We can find no
case where Alabama appellate courts have applied
the cumulative-effect analysis to claims of
ineffective assistance of counsel." Brooks v. State,
929 So. 2d 491, 514 (Ala. Crim. App. 2005), quoted

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in Scott v. State, [262] So. 3d [1239, 1253] (Ala.
Crim. App. 2010); see also McNabb v. State, 991
So. 2d 313, 332 (Ala. Crim. App. 2007); and Hunt
v. State, 940 So. 2d 1041, 1071 (Ala. Crim. App.
2005). More to the point, however, is the fact that
even when a cumulative-effect analysis is
considered, only claims that are properly pleaded
and not otherwise due to be summarily dismissed
are considered in that analysis. A cumulative-
effect analysis does not eliminate the pleading
requirements established in Rule 32, Ala. R. Crim.
P. An analysis of claims of ineffective assistance
of counsel, including a cumulative-effect analysis,
is performed only on properly pleaded claims that
are not summarily dismissed for pleading
deficiencies or on procedural grounds. Therefore,
even if a cumulative-effect analysis were required
by Alabama law, that factor would not eliminate
Taylor's obligation to plead each claim of
ineffective assistance of counsel in compliance
with the directives of Rule 32.'

"Taylor v. State, 157 So.3d 131, 140 (Ala. Crim. App. 2010)."

White v. State, 343 So. 3d 1150, 1176 (Ala. Crim. App. 2019). Here, even

"[i]f we were to evaluate the cumulative effect of the instances of alleged

ineffective assistance of counsel, we would find that [Scheuing's]

substantial rights had not been injuriously affected, because we have

found no error in the instances argued in the petition." McNabb v. State,

991 So. 2d 313, 332 (Ala. Crim. App. 2007).

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II. Claims of Trial-Court Error

Scheuing argues that the trial court erred (1) when it failed "to find

[his] severe mental illness as a mitigating circumstance and to consider

other mental-health evidence as mitigating" (Scheuing's brief, p. 51), and

(2) when it failed to "consider [his] youth and undeveloped brain as

nonstatutory mitigating factors." (Scheuing's brief, p. 51-52). Scheuing's

arguments are without merit.

In his third amended petition, Scheuing alleged that the "trial

court's factual findings during [his] sentencing hearing ignored

constitutional requirements to avoid arbitrary and unfair death

sentencing." (C. 945.) Specifically, Scheuing alleged that the "trial

court's failure to find [his] severe mental illness as a mitigating

circumstance and to consider other mental-health evidence as mitigating

entitles [him] to sentencing relief" and that the "trial court's failure to

consider [his] youth and cognitive development entitled him to

sentencing relief." (C. 945-46.)

The circuit court dismissed Scheuing's claims regarding alleged

trial-court error as precluded under Rule 32.2(a)(3) and (5), Ala. R. Crim.

P. Rule 32.2(a)(3) states that a "petitioner will not be given relief under

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this rule based upon any ground … [w]hich could have been but was not

raised at trial, unless the ground for relief" is a jurisdictional issue.

Likewise, Rule 32.2(a)(5) states that a "petitioner will not be given relief

under this rule based upon any ground … [w]hich could have been but

was not raised on appeal, unless the ground for relief" is a jurisdictional

issue.

On appeal, Scheuing merely reiterates the allegations he raised in

his petition. Scheuing does not address the reasons the circuit court gave

in its order for summarily dismissing these claims. The circuit court

properly dismissed these claims because they are nonjurisdictional and,

thus, subject to the grounds of preclusion set out in Rule 32.2, Ala. R.

Crim. P. The circuit court therefore properly dismissed these claims as

precluded under Rule 32.2(a)(3) and (5) because they could have been,

but were not, raised at trial or on appeal. See also White v. State, 343

So. 3d 1150, 1191 (Ala. Crim. App. 2019) (holding that the claims that

the trial court failed to consider White's youth, cognitive development,

and mental illness as mitigating circumstances were precluded because

they could have been raised at trial or on direct appeal).

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III. Scheuing's "As Applied" Challenges to the Death Penalty

Finally, Scheuing argues that the "death penalty as applied to [him]

is unconstitutional" for the following reasons:

• His "death sentence violates the Sixth and Fourteenth
Amendments under Hurst v. Florida, 136 S. Ct. 616
(2016)." (Scheuing's brief, p. 53.)

• "Alabama's capital-sentencing statute violates the Sixth
and Fourteenth Amendments because it allows the
imposition of death when juries do not unanimously find
necessary facts to reach a unanimous verdict."
(Scheuing's brief, p. 56.)

• His "death sentence is constitutionally and statutorily
invalid because Alabama became the last state to reject
advisory jury verdicts in capital sentencing."
(Scheuing's brief, p. 60.)

• "Executing a judicially sentenced prisoner would violate
the Federal Constitution's and the Alabama
Constitution's Equal Protection and Substantive Due
Process Clauses." (Scheuing's brief, p. 62.)

• "Society's evolving standards of decency rejects its use
on people with long-term severe mental illness."
(Scheuing's brief, p. 64.)

• "It is unconstitutional to impose the death penalty upon
the severely mentally ill because there is a developing
national consensus against their execution."
(Scheuing's brief, p. 70.)

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• He "is categorically excluded from the death penalty
because the scientific community now recognizes that
teenagers' brains have not matured and developed."
(Scheuing's brief, p. 71.)

• He "is categorically excluded from the death penalty
because killing him violates his due-process right to
human dignity." (Scheuing's brief, p. 72.)

• "The imposition of death violates the Eighth
Amendment's Cruel and Unusual Clause and the
Fourteenth Amendment's Due Process Clause
generally." (Scheuing's brief, p. 74.)

• "Evolving standards of decency prohibit under the
Eighth Amendment's prohibition against cruel and
unusual punishment from executing [him] because he is
severely mentally ill." (Scheuing's brief, p. 75.)

The circuit court summarily dismissed all but one of those claims

as precluded under Rule 32.2(a)(3) and (5), Ala. R. Crim. P., "because

[those claims] could have been but [were] not raised at trial and because

[those claims] could have been but [were] not raised on direct appeal."

(C. 1269, 1272, 1273, and 1275.) Scheuing's remaining claim -- that his

"death sentence is constitutionally and statutorily invalid because

Alabama became the last state to reject advisory jury verdicts in capital

sentencing" (Scheuing's brief, p. 60) -- was summarily dismissed on the

merits.

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On appeal, Scheuing reiterates the allegations he raised in his

petition, without addressing the procedural bars that the circuit court

held applied to those issues. As this Court has explained, claims

concerning the imposition of the death penalty or claims concerning the

constitutionality of a death sentence are nonjurisdictional claims that are

subject to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P.

See, e.g., McNair v. State, 706 So. 2d 828, 854 (Ala. Crim. App. 1997)

("The appellant's contention that his death sentence should be vacated

because his execution would constitute cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments was precluded

because it could have been but was not raised at trial or on appeal. Rule

32.2(a)(3) and (5)"), and Wimbley v. State, 387 So. 3d 213, 260 (Ala. Crim.

App. 2022) (holding that Wimbley's claims that his death sentence is

unconstitutional because "he 'is severely mentally ill' and that '[e]volving

standards of decency prohibit [the State] under the Eighth Amendment's

prohibition against cruel and unusual punishment from executing [him]

because he is severely mentally ill' " are nonjurisdictional claims subject

to the grounds of preclusion set out in Rule 32.2.). Because Scheuing

could have raised those claims at trial or on appeal, but did not, the

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circuit court correctly concluded that his claims were precluded under

Rule 32.2(a)(3) and Rule 32.2(a)(5).

Scheuing's claim that his "death sentence is constitutionally and

statutorily invalid because Alabama became the last state to reject

advisory jury verdicts in capital sentencing" (Scheuing's brief, p. 60) is,

as the circuit court found, without merit.

Scheuing raised this same claim in the circuit court. According to

Scheuing, because the Alabama Legislature repealed a circuit court's

ability to override a jury's sentencing recommendation in a capital-

murder case and entrusted capital sentencing to a jury,

"[a]n execution carried out in the face of this judgment would
plainly be cruel and unusual punishment, violate Alabama's
statutory prohibition against arbitrary death sentences, and
the constitutional prohibitions against arbitrary criminal
laws unsupported by legitimate penological objectives. Such
an execution also would be unprecedented; a search of the
historical record has revealed no jurisdiction in the history of
the United States that executed an offender after renouncing
capital punishment."

(C. 969.)

The circuit court dismissed Scheuing's claim as without merit

finding that,

"[d]uring the 2017 session of the Alabama Legislature,
Senate Bill 16, codified at 2017 Alabama Laws Act 2017-131,

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was enacted on April 11, 2017, and amended sections 13A-5-
45, -46, and -47 of the Code of Alabama to remove the option
for judicial override in capital sentencing. There is no
question as to the non-retroactivity of the act. Section Two of
the act states, in relevant part, that: 'This act ... shall not
apply retroactively to any defendant who has previously been
convicted of capital murder and sentenced to death prior to
the effective date of this act.'

"Even if Scheuing could show that Senate Bill 16 had
retroactive application, it would have no effect on his death
sentence. Scheuing's jury recommended that he be sentenced
to death, and the circuit court accepted that recommendation.
Since this is not an override case, even if Scheuing's jury had
ultimately sentenced him, his sentence would be exactly what
it is now -- death."

(C. 1217.) We agree with the circuit court.

Indeed, Scheuing's allegation about the legislature's decision to

repeal judicial override and replace it with a capital-sentencing scheme

that places the capital-sentencing authority with the jury is premised on

his belief that the legislature's decision means that it has determined

that the judicial-override procedure has no "legitimate penological

objective"; that the new capital-sentencing procedure rendered the old

capital-sentencing procedure unconstitutional; and that changing

capital-sentencing schemes was a renunciation of capital punishment.

Those premises are incorrect.

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First, the legislature's decision to repeal judicial sentencing in favor

of jury sentencing in the capital-sentencing procedures does not mean

that the legislature renounced capital punishment under that scheme or

that it had concluded that the judicial-sentencing procedure has no

"legitimate penological objective." Indeed, as this Court recently held,

when the legislature enacted the new jury-sentencing scheme for capital

murder, it expressly preserved sentences imposed under the judicial-

sentencing procedure by not applying the new scheme retroactively, and

it expressly declined to apply the jury-sentencing scheme to any

defendant who had been charged with, but not yet convicted of, capital

murder before the effective date of the act. See Sykes v. State, [Ms. CR-

2022-0546, May 3, 2024] ___ So. 3d ____, ____ (Ala. Crim. App. 2024)

(noting that "[§] 13A-5-47.1, Ala. Code 1975, states that this new capital-

sentencing scheme 'shall apply to any defendant who is charged with

capital murder after April 11, 2017, and shall not apply retroactively to

any defendant who has previously been convicted of capital murder and

sentenced to death prior to April 11, 2017,' " and holding that the judicial-

override procedure applied to Sykes because "[t]he new capital

sentencing scheme is triggered by the date on which a defendant is

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charged with capital murder. Sykes was first charged with capital

murder in the death of [the victim] in May 2015, well before the effective

date of the new capital-sentencing scheme -- April 11, 2017").

Second, the legislature's adopting a jury-sentencing procedure does

not render the judicial-sentencing procedure unconstitutional. Indeed,

no court has ever held Alabama's judicial-sentencing procedure to be

unconstitutional. As this Court has explained:

"The Alabama Supreme Court in Ex parte Bohannon,
222 So. 3d 525 (Ala. 2016), held that Alabama's override
scheme remained constitutional after Hurst[v. Florida, 577
U.S. 92 (2016)], and this Court has repeatedly held that
Alabama's capital-sentencing scheme, including judicial
override, remained constitutional after Hurst. See, e.g., Hicks
v. State, 378 So. 3d 1071, 1127 (Ala. Crim. App. 2019);
Lindsay v. State, 326 So. 3d 1, 55 (Ala. Crim. App. 2019);
Knight v. State, 300 So. 3d 76, 128-30 (Ala. Crim. App. 2018)."

State v. Mitchell, 377 So. 3d 94, 125 (Ala. Crim. App. 2022).

Finally, as the circuit court noted in its order dismissing this claim,

Scheuing is not being treated any differently from a person who is

sentenced to death by a jury under the new jury-sentencing scheme

because "this is not an override case, even if Scheuing's jury had

ultimately sentenced him, his sentence would be exactly what it is now

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-- death." (C. 1271.) Thus, the circuit court properly dismissed this claim

as without merit.

Conclusion

Based on these reasons, Scheuing is due no relief on his claims and

the judgment of the circuit court is affirmed.

AFFIRMED.

Windom, P.J., and McCool and Minor, JJ., concur. Kellum, J.,

concurs in the result.

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