Joseph Michael Wilson v. State of Alabama (Appeal from Madison Circuit Court: CC-97-164.60)

Rel: June 28, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2023-2024
_________________________

CR-21-0109
_________________________

Joseph Michael Wilson

v.

State of Alabama

Appeal from Madison Circuit Court
(CC-97-164.60)

COLE, Judge.

Joseph Michael Wilson, an inmate on Alabama's death row, appeals

the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P.,

petition for postconviction relief.
CR-21-0109

Facts and Procedural History

"In September 1996, Michelle Hayden and Ashley
Rutherford, who were engaged to be married, lived together
in a room in the house in which Rutherford's aunt lived. On
or about September 18, 1996, [Wilson], Nicholas Acklin, and
Corey Johnson went to Rutherford's residence and acted like
they wanted to buy some marijuana. After looking at the
marijuana, the three men left. However, Johnson returned,
asked to see the marijuana again, and then grabbed the
marijuana and left. Shortly thereafter, Lamar Hemphill, who
was visiting Rutherford, realized that his cellular telephone
was missing. When he called the telephone's number,
[Wilson] answered. Hemphill then filed a complaint with the
sheriff's department, alleging that [Wilson] stole his cellular
telephone. A few days later, [Wilson] discovered that a
complaint had been filed against him.

"On September 25, 1996, Hayden, Hemphill, and Brian
Carter were watching television in Hayden and Rutherford's
room while Rutherford was at work. Michael Skirchak and
Johnny Couch, who were on their way to pick up Michael
Beaudette, stopped to visit them. Around 10 p.m., [Wilson],
Acklin, and Johnson arrived, and [Wilson] started asking who
had filed a warrant against him for taking a cellular
telephone. Hemphill stated that he did not know anything
about a warrant and that only a complaint had been filed.
Johnson then started slapping Hemphill, Couch, Carter, and
Skirchak around. Using a Jack Daniel's whiskey bottle, he
hit Hemphill in the head and Carter in the mouth. He also
grabbed Couch by his hair, which was long, and repeatedly
slammed his head into a dresser. At one point, Johnson held
Couch up by his hair, and [Wilson] cut Couch's hair. [Wilson]
also repeatedly 'stomped' Couch, who was lying on the floor.
Sometime later, Beaudette arrived and was told to empty his
pockets.

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"[Wilson], Acklin, and Johnson were all armed with
pistols. At one point, while Acklin and Johnson remained
armed, [Wilson] laid his gun on a table and dared the others
to grab it. He also held his gun to Skirchak's head and asked
him about the warrant. During the evening, [Wilson] made
some of the males take off their pants and give him their
identification cards. He also made statements like 'Y'all don't
know who you're f______ with. Y'all are fake. We're real.' (R.
780), and 'I ain't even supposed to be here. I'm the leader of
this crew. I'm not even supposed to be here. I'm supposed to
be at home with my wife or girlfriend.' (R. 780-81.)
Throughout the evening, [Wilson] repeatedly said, 'This is my
crew.'

"Around 11:20 or 11:30 p.m., Rutherford came home
from work. [Wilson], Acklin, and Johnson questioned him
about the warrant and warned him not to lie to them. They
made him take his pants off, and [Wilson] took two necklaces
from him. [Wilson] yelled at Rutherford, slapped him, and
spit in his face. He also made Hayden say 'My boyfriend
[Rutherford] ain't s___.' Additionally, Acklin put a gun in
Rutherford's mouth and made him gag.

"Throughout the evening, [Wilson] repeatedly made
comments like, 'Let's buck them' and 'You don't f___ with
Joey's crew.' Witnesses testified that 'buck' meant 'shoot' or
'kill.' One time, Hayden told [Wilson] to be quiet or he would
wake up Rutherford's aunt. In response, [Wilson] said, 'Well,
we can take care of her too.' (R. 1448.) As the violence
escalated, Johnson tried to stop [Wilson] and Acklin, but they
made fun of him. Finally, [Wilson] told Acklin that if Acklin
would shoot the first one, he would shoot the rest of them.
Shortly after that comment, Acklin grabbed Rutherford and
shot him in the back of the head. [Wilson] then started
shooting. When the shooting started, Skirchak ran out of the
house and sought help. After firing 19 times, [Wilson], Acklin,
and Johnson left, and Rutherford and his aunt telephoned for
help.

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"Medical personnel and law enforcement officers arrived
around midnight, and Rutherford immediately identified
[Wilson] as the perpetrator. Around 12:15 a.m., officers
apprehended [Wilson] and Johnson and found a revolver that
had been used in the incident in their vehicle. Later, they
found a Ruger P89, two Lorcin pistols, another revolver, and
Beaudette's driver's license at Acklin's residence.

"After they arrested him, [Wilson] made a statement to
Investigator Kevin Turner about his involvement in the
offense. In that statement, [Wilson] admitted that he, Acklin,
and Johnson went to Rutherford's residence about a dispute
over a cellular telephone. He stated that he had a revolver
and that Acklin and Johnson also had weapons. He admitted
that they slapped some of the victims and that one thing led
to another and the shooting started. When the shooting
started, he said he ran to his vehicle, Acklin and Johnson
followed him, and they all left. He initially told Turner he did
not remember who did the shooting, but then said, '[T]hat's
my crew y'all got locked up out there. I'm not going to turn
and rat on them.' (R. 922.)

"At trial, one of [Wilson's] friends testified that [Wilson]
telephoned him from jail after the offense, talked about the
incident, and told him to 'finish the job,' which he took to mean
to kill the surviving witnesses. One of [Wilson's] cell mates
testified that [Wilson] had bragged about his involvement in
the offense. He also testified that [Wilson] had made
statements about having friends 'on the outside' who had
persuaded Hayden not to testify and who could 'take care of'
witnesses in the cell mate's case.

"Hemphill, Beaudette, Couch, Carter, Hayden, and
Rutherford sustained gunshot wounds as a result of the
incident. Hemphill, Beaudette, Couch, and Carter died as a
result of the gunshot wounds they sustained, and Hayden and
Rutherford were injured. Forensic testing revealed that

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CR-21-0109

Carter had been shot with a Ruger P89, and Skirchak,
Hayden, and Rutherford testified that [Wilson] had been
armed with a Ruger P89. During the penalty phase of the
trial, [Wilson] admitted that he had been armed with a Ruger
P89 and that he had shot Carter, but denied that he had shot
anyone else."

Wilson v. State, 777 So. 2d 856, 874-76 (Ala. Crim. App. 1999).

In January 1997, Wilson was indicted for two counts of capital

murder -- one count for killing Hemphill, Beaudette, Couch, and Carter

"by one act or pursuant to one scheme or course of conduct," a violation

of § 13A-5-40(a)(10), Ala. Code 1975, and one count for causing their

deaths during the course of a first-degree burglary, a violation of § 13A-

5-40(a)(4), Ala. Code 1975 -- and two counts of attempted murder for

shooting Rutherford and Hayden, violations of §§ 13A-4-2 and 13A-6-2,

Ala. Code 1975.

In late 1998, Wilson was convicted of capital murder for killing two

or more persons pursuant to one scheme or course of conduct and for two

counts of attempted murder. As to his capital-murder conviction, the jury

unanimously recommended that Wilson be sentenced to death, and the

trial court followed that recommendation. As to his attempted-murder

convictions, the trial court sentenced Wilson to 20 years' imprisonment

for each offense, ordering his 20-year sentences to run consecutively with

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his death sentence. This Court affirmed Wilson's capital-murder

conviction and death sentence on November 19, 1999.1 See Wilson,

supra. The Alabama Supreme Court affirmed this Court's judgment on

September 20, 2000. See Ex parte Wilson, 777 So. 2d 935 (Ala. 2000).

This Court issued a certificate of judgment that same day.

On December 21, 2001, Wilson filed a Rule 32 petition, challenging

his capital-murder conviction and death sentence as well as his

attempted-murder convictions and 20-year sentences.2 In his initial

petition, Wilson alleged the following:

• That his trial counsel were ineffective.

• That the State failed to comply with Brady v. Maryland,
373 U.S. 83 (1963).

• That the trial court erred when it admitted evidence of
Wilson's prior offenses.

1Wilson did not appeal his attempted-murder convictions or his 20-

year sentences.

2"Rule 32.2(c), Ala. R. Crim. P., was amended effective August 1,

2002, to reduce the limitations period from two years to one year;
however, for those cases that became final before August 1, 2001, the two-
year limitations period applies. See Hyde v. State, 950 So. 2d 344 (Ala.
Crim. App. 2006)." Bryant v. State, 29 So. 3d 928, 933 n.2 (Ala. Crim.
App. 2009). Because Wilson's capital-murder conviction became final on
September 20, 2000, the two-year limitations period applies to his Rule
32 petition.
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CR-21-0109

• That the trial court erred when it admitted "improper
opinion testimony in support of aggravating
circumstances." (Supp. Record on Appeal, C. 61.)

• That the trial court erred "by not instructing the jury on
the lesser-included offense of felony murder." (Supp.
Record on Appeal, C. 62.)

• That the trial court and the State "improperly
minimized the jury's role in the capital sentencing
scheme." (Supp. Record on Appeal, C. 64.)

• That the trial court erred when it improperly instructed
the jury. (Supp. Record on Appeal, C. 66.)

• That the "indictment did not correspond with the State's
proof, denying [him] a fair trial and an accurate
sentencing determination." (Supp. Record on Appeal, C.
68.)

• That the State improperly "used peremptory strikes to
remove women from the jury." (Supp. Record on Appeal,
C. 70.)

• That the State improperly "commented on [his] silence"
after he had been Mirandized. (Supp. Record on Appeal,
C. 71.)

• That the trial court "failed to consistently find and
consider mitigating circumstances." (Supp. Record on
Appeal, C. 72.)

• That the State engaged in prosecutorial misconduct;
that "the jury was improperly informed about the case
outside the presence of the trial court or Mr. Wilson
because the trial court failed to control the venire."
(Supp. Record on Appeal, C. 85-86.)

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CR-21-0109

• That the trial court erred when it did not "grant [him]
youthful offender status." (Supp. Record on Appeal, C.
86.)

• That he did not have an "impartial and fair minded jury"
because the trial court "refused to excuse unqualified
jurors or allow individual voir dire." (Supp. Record on
Appeal, C. 87.)

• That the trial court improperly interfered with voir dire.

• That the trial court "erred by relying on an inadequate
and cursory presentence report." (Supp. Record on
Appeal, C. 91.)

• That "the aggravating circumstance that Mr. Wilson
created a great risk of death to many persons is
unconstitutionally vague." (Supp. Record on Appeal, C.
92.)

• That the trial court erred when it denied his motion for
a change of venue, when it did not allow him to depose
the State's expert witness, and when it admitted certain
photographs at his trial; that "a strong victim's presence
in the courtroom deprived [him] of a fair trial and
accurate sentence determination." (Supp. Record on
Appeal, C. 98.)

• That the manner of execution in Alabama -- at the time,
electrocution -- is unconstitutional; that the State's
evidence was insufficient to show that Wilson
committed a capital murder of two or more people
pursuant to one scheme or course of conduct.

• That the State's evidence was insufficient to support his
attempted-murder convictions.

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CR-21-0109

• That "the cumulative effect of all the above listed claims
entitles [him] to postconviction relief." (Supp. Record on
Appeal, C. 105.)

After Wilson filed his petition, the following occurred:

"On March 14, 2002, Wilson's attorney filed a motion seeking
a status or scheduling conference and also seeking leave to
amend the petition. In support of the request to amend the
petition, the attorney alleged that he had been hired only a
few days before the petition was filed; that, due to previous
obligations, he had been unable to work on Wilson's case until
the third week in January and that he had not met with
Wilson until February 14, 2002. Counsel also alleged that
several additional meritorious issues existed and needed to be
raised in the petition and that the request to amend the
petition was not made for purposes of delay. Also on March
14, 2002, Wilson filed an amendment to the Rule 32 petition.
On March 18, 2002, the State, through the attorney general,
filed the following documents: an answer to the original
petition; the affidavit of Randall Gladden, the lead attorney
who represented Wilson at trial; a motion for summary
dismissal; and a proposed order dismissing the petition. On
March 26, 2002, the Madison County District Attorney filed a
response to the original petition. The prosecutor alleged in
that response that the petition was due to be summarily
dismissed.

"Although the record does not contain an order setting a
hearing on the State's motion for summary dismissal, it
appears that a hearing was set for May 23, 2002, because on
April 23, 2002, Wilson filed a motion seeking a continuance of
a hearing set for May 23, 2002. The trial court granted the
motion on April 24, 2002. On May 6, 2002, the State filed a
document opposing any further continuances and requesting
that an evidentiary hearing be held on any motion to amend
that Wilson might later file.

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"On July 15, 2002, Wilson filed numerous documents.
He filed a motion for leave to file a second amended petition
and a memorandum of law in support of that motion; he also
submitted an amended petition. He filed a motion for
discovery, seeking production of the file that the prosecutor
had provided to trial counsel and seeking any other
documents that should have been, but were not, provided to
trial counsel. He filed a motion for an evidentiary hearing and
an objection to the trial court's adopting verbatim any orders
submitted by the State. He also filed a response to the State's
answer and argued in that response that the claims raised in
the petition were not procedurally barred and that he was
entitled to a hearing. On July 19, 2002, the trial court held a
hearing on the State's motion for summary dismissal. At that
hearing, the parties presented their arguments regarding
whether the original petition was due to be dismissed or
whether a hearing on the merits of the petition should be held.
The trial court reserved its ruling on the motion. On August
9, 2002, Wilson filed a motion for leave to file a third
amendment to his petition and he submitted an amended
petition; on August 21, 2002, Wilson filed a motion for leave
to file a fourth amendment to the petition and he filed an
amended petition; and on August 28, 2002, Wilson filed a
motion for leave to file a fifth amendment to the petition and
he filed an amended petition. In September 2002, Wilson filed
a supplemental brief in support of his request for an
evidentiary hearing, and he cited Ex parte MacEwan, 860
So.2d 896 (Ala.2002), in support of his request for an
evidentiary hearing.

"On October 16, 2002, the circuit court issued an order
summarily dismissing the Rule 32 petition. The court
determined that a majority of the claims asserted in the
petition were procedurally barred and that the few ineffective-
assistance-of-counsel claims that were not procedurally
barred had no merit. The trial court also denied all of Wilson's
motions to amend the Rule 32 petition."

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Wilson v. State, 911 So. 2d 40, 42-43 (Ala. Crim. App. 2005) (footnotes

and record citations omitted). Wilson appealed the circuit court's

judgment.

In that appeal, Wilson argued, in part, that the circuit court "erred

when it 'ignored' his repeated requests to amend the Rule 32 petition."

911 So. 2d at 44. On April 29, 2005, this Court, relying on Ex parte

Rhone, 900 So. 2d 455 (Ala. 2004), issued an opinion agreeing with

Wilson and explaining as follows:

"Wilson filed the petition on December 21, 2001. He
filed motions to amend and he filed amendments to the
petition from March 2002 through August 2002. The trial
court summarily denied all of the motions to amend the
petition in the same written order in which it denied relief on
the original Rule 32 petition. All of Wilson's proposed
amendments were filed before the expiration of the
limitations period of Rule 32.2(c), Ala. R. Crim. P. The State's
arguments in support of the denial of the motions to amend
-- that Wilson did not establish that the amendments were
based on surprise, newly discovered evidence, or changed
circumstances, and that Wilson failed to establish that his
attorney acted diligently in filing the amendments -- fail to
acknowledge the standard the Alabama Supreme Court has
established for evaluating whether an amendment to a Rule
32 petition was properly denied. That standard, as expressed
in Ex parte Rhone, [900 So. 2d 455 (Ala. 2004)], does not
require Wilson to establish that the allegations in the
proposed amendments were based on surprise, newly
discovered evidence, or changed circumstances, nor did it
require proof that counsel acted diligently. The Alabama
Supreme Court in Ex parte Rhone overruled Cochran v. State,

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548 So. 2d 1062 (Ala. Crim. App. 1989), and any other prior
decisions that purported to place on the petitioner the burden
of showing due diligence in filing the amendment or showing
that the facts underlying the amendment were not known
when the initial petition was filed. 900 So. 2d at 458. The
Court in Ex parte Rhone stated, 'The right to amend is limited
by the trial court's discretion to refuse an amendment based
upon factors such as undue delay or undue prejudice to the
opposing party.' Id.

"Wilson's first amended petition was filed on March 14,
2002, before the State filed its answer. Certainly there was
no undue delay and no prejudice to the State with regard to
this amendment. The trial court abused its discretion when
it denied Wilson's motion to amend the petition to include
more specific allegations of ineffective assistance of counsel.

"It is important to note that, when the State filed its
answer to Wilson's original petition, it also filed an affidavit
from Wilson's lead trial attorney. In the affidavit the attorney
offered his explanations for some of the decisions he made
during the trial, such as his determination that a defense
based on mercy was appropriate. In the July 15, 2002, second
amended petition, Wilson stated, 'For continuity reasons,
Joseph Wilson is merging the allegations of his first
amendment to his Rule 32 petition into his second
amendment to his rule [sic] petition.' (C. 220.) In the second
amended petition, Wilson directly addressed the claims made
by his lead trial attorney in the affidavit the State submitted
with its answer and alleged that trial counsel did not conduct
an investigation into possible mitigation evidence. Wilson
alleged that trial counsel had known that he had ingested
drugs and alcohol on the evening the crime was committed,
but that they did not further investigate his addiction. Wilson
further alleged that because trial counsel failed to conduct an
investigation into mitigation evidence, they failed to discover
numerous pieces of potential mitigation evidence, such as the
facts that Wilson had physical problems at birth, and at the

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time of the crime was on medication that might have affected
his behavior; that as a child his home life was 'disturbed' and
that his behavior at school indicated a possible learning
disability; and that he had been abusing drugs and alcohol for
years. Wilson also alleged that trial counsel failed to move for
expert assistance from a mental health professional who could
have investigated, developed, and presented the mitigation
evidence, and that the failure to discover and present
mitigation evidence prejudiced his case. Wilson's second
amended petition contained additional responses to the trial
attorney's affidavit and further developed claims raised in the
original petition.

"The trial court erred when it denied Wilson's motion to
file the second amended petition. The second amended
petition was filed seven months after the original petition was
filed; it specifically responded to allegations in the State's
answer to the petition and to claims trial counsel made in the
affidavit accompanying the answer. The trial court relied on
trial counsel's affidavit when it denied Wilson's ineffective-
assistance claims, yet by refusing to hold an evidentiary
hearing and by denying Wilson's motion to amend, it also
unilaterally denied Wilson his right to counter the evidence
presented by the State. Under the principles clearly
expressed by the Alabama Supreme Court in Ex parte Rhone,
we are compelled to hold that the trial court erred to reversal
when it denied Wilson's second motion to amend the petition.

"Wilson's revised third amended petition, filed on
August 19, 2002, contains several claims related to Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556
(2002), which was released after the original petition was
filed. The trial court abused its discretion when it denied
Wilson's motion to file the third amended petition. There was
no undue delay in the filing and there would have been no
undue prejudice to the State if the trial court had granted the
motion to amend. Although the trial court erred when it
denied the motion to file the third amended petition, that

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error was harmless. In Schriro v. Summerlin, 542 U.S. 348,
124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004), the United States
Supreme Court held that the rule announced in Ring does not
apply retroactively to postconviction cases. Wilson had filed
his postconviction petition before Ring was decided.
Therefore, even if the trial court had granted the motion to
amend, Wilson would not have been entitled to any relief.

"The trial court erred when it denied Wilson's August
21, 2002, motion to file a fourth amended petition, and
Wilson's August 28, 2002, motion to file a fifth amended
petition. In the fourth amendment, Wilson further responded
to the affidavit of trial counsel that had been submitted with
the State's answer. In that amendment Wilson made
additional allegations of ineffective assistance of counsel. In
the fifth amendment, Wilson responded to trial counsel's
allegations regarding the mitigation case he presented at trial
and quoted from an article regarding investigation in capital
cases. Because the trial court failed to hold an evidentiary
hearing, Wilson was able to respond to the assertions in his
lead trial counsel's affidavit only by filing amendments to the
original petition. Concerns of undue delay and undue
prejudice to the State were not implicated as a result of these
amendments; concerns of fairness and due process were
implicated. Therefore, the trial court should have granted
Wilson's motion to file the fourth and fifth amended
petitions."

Wilson, 911 So. 2d at 44-46. This Court reversed the circuit court's

summary dismissal and its denial of "some of Wilson's motions to amend

the petition" and remanded Wilson's case to the circuit court for that

court to "address the allegations contained in the second, fourth, and fifth

amended petitions." Wilson, 911 So. 2d at 46 (emphasis added).

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In so doing, this Court instructed the circuit court that the State

"must be afforded the opportunity to answer the allegations in the

petition, as amended." Id. at 47. And because the State had attached an

affidavit to its answer and the circuit court had "indicated in its order

that it had relied on the State's answer when it summarily dismissed the

petition," this Court urged the circuit court to "give careful consideration

to holding an evidentiary hearing on the claims presenting factual

disputes so that both parties are afforded the right to present evidence

and to cross-examine any witnesses." Id. (emphasis added). This Court

also pointed out that it was particularly concerned with Wilson's

allegation that his trial counsel had "failed to conduct any investigation

into potential mitigation evidence and that his decisions regarding trial

strategy in both the guilty and penalty phases were based on his

inadequate investigation." Id. Finally, this Court recognized that,

although it found on direct appeal that "the evidence of Wilson's guilt was

overwhelming," that finding

"does not preclude Wilson from presenting and receiving
review of his postconviction claims in accordance with the
mandates of Rule 32. At a minimum, Wilson is entitled to a
thorough review of all of his properly pleaded claims, and he
is entitled to an opportunity to prove the allegations of those
claims that are not due to be summarily dismissed."

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Id. After Wilson's case was reversed and remanded to the circuit court

in 2005, his case languished in that court for more than 16 years.

On July 15, 2005, the State answered Wilson's second, fourth, and

fifth amendments to his Rule 32 petition. (C. 31-76.) And, on August 26,

2005, Wilson filed a "Motion for Leave to File a Sixth Amendment to his

Rule 32." (C. 78-202.) In response, the State moved the circuit court to

deny Wilson's motion to amend his Rule 32 petition for a sixth time. 3 (C.

245-51.)

Almost eight years later, on June 25, 2013, a new assistant attorney

general entered a notice of appearance in the circuit court in Wilson's

case (C. 277), and on July 1, 2013, the presiding circuit judge entered the

following order:

"This cause came before the Court on a letter from
Assistant Attorney General Jon B. Hayden dated June 25,
2013 respectfully requesting inquiry regarding post-
conviction proceedings in the [Wilson] cause. This Court has
learned that a Certificate of Judgment from the Alabama
Court of Criminal Appeals dated May 18, 2005, reversing and
remanding a ruling of the trial court, was never entertained
by the assigned Judge who has now retired. As such, it is

3The circuit court denied Wilson's motion to amend his petition for

a sixth time on June 29, 2015. (C. 281.) Wilson makes no argument on
appeal that the circuit court erred when it denied his motion to amend
his petition for a sixth time.
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hereby ORDERED, ADJUDGED and DECREED that this
matter be reassigned to the Honorable Donna S. Pate, Circuit
Judge, for immediate review and proceedings consistent with
the 2005 Order of the Alabama Court of Criminal Appeals."

(C. 279.)

Almost two years after the order from the presiding circuit judge,

on June 29, 2015, the appointed circuit judge issued an order (1) denying

Wilson's motion to amend his petition a sixth time, (2) giving the State

an opportunity to "supplement its previously filed responses to

defendant's second, fourth, and fifth amendments, if it so chooses," and

(3) giving Wilson an opportunity to respond to any supplemental

response the State files. (C. 281.)

Thereafter, on August 31, 2015, the State filed its "Amended

Answer and Motion to Dismiss Wilson's Second, Fourth, and Fifth

Amendments to his Rule 32 Petition." (C. 282-322.)

On February 10, 2016, the State filed a "Request for a Ruling" on

its amended answer and motion to dismiss, noting that Wilson's deadline

for filing a response to the State's motion had "long passed." (C. 342-44.)

The circuit court took no action on the State's request. Then, over two

years later, on September 20, 2018, the State filed a second request for a

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ruling on its motion to dismiss. (C. 365-68.) Again, the circuit court took

no action.

On August 19, 2021, the State filed a third request for a ruling on

its motion to dismiss. (C. 372-77.) Then, on October 1, 2021, the circuit

court issued a 92-page order summarily dismissing Wilson's second,

fourth, and fifth amended petitions, finding that it had "carefully and

thoroughly reviewed all claims in Wilson's Second, Fourth, and Fifth

Amended Petitions and can discern no factual disputes requiring an

evidentiary hearing." (C. 379-470.) 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).

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And it is equally well settled that, when reviewing a circuit court's

summary dismissal of a postconviction petition, " '[t]he standard this

Court uses … 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, our standard of

review is de novo. Ex parte Hinton, 172 So. 3d 348, 353 (Ala. 2012).

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

Here, the circuit court summarily dismissed some of Wilson's

claims because they were without merit or failed to state a claim for

relief. Some of Wilson'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

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cannot determine whether the petition 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
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). Finally,

we note that, in reviewing Wilson's appeal from the summary dismissal

of his Rule 32 petition, "the plain-error standard of review does not

apply." James v. State, 61 So. 3d 357, 362 (Ala. Crim. App. 2010) (citing

20
CR-21-0109

Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001)). With these standards in

mind, we turn to Wilson's arguments.

Discussion

On appeal, Wilson argues that the circuit court erred when it

summarily dismissed both his guilt-phase and penalty-phase claims of

ineffective assistance of counsel. Wilson also argues that the circuit court

erred when it dismissed his claims that the State "violated its

constitutional obligations under Brady v. Maryland[, 373 U.S. 833

(1963)]" (Wilson's brief, p. 45); that the State made "repeated comments

on [his] silence after receiving Miranda[ v. Arizona, 384 U.S. 436 (1966),]

warnings and invoking" his rights (Wilson's brief, p. 47); and that there

was "[p]ervasive prosecutorial misconduct" during his trial (Wilson's

brief, p. 49). We address each argument in turn.

I. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a

petitioner must show both that his counsels' performance was deficient

and that he was prejudiced by his counsels' deficient performance. See

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

21
CR-21-0109

(1984). The oft-repeated standard courts use to review claims of

ineffective assistance is as follows:

" ' "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 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.

22
CR-21-0109

" ' "[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 [(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 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

23
CR-21-0109

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).

"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, 80 L. Ed. 2d 674. A bare
allegation that prejudice occurred without specific facts
indicating how the petitioner was prejudiced is not sufficient."

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

v. State, 86 So. 3d 405, 416 (Ala. Crim. App. 2011). Because "the claim

of ineffective assistance of counsel is a general allegation that often

consists of numerous specific subcategories," "[e]ach subcategory is an

independent claim that must be sufficiently pleaded." Coral v. State, 900

So. 2d 1274, 1284 (Ala. Crim. App. 2004), overruled on other grounds, Ex

parte Jenkins, 972 So. 2d 159 (Ala. 2005). With these well-settled

principles in mind, we address Wilson's arguments concerning his

ineffective-assistance-of-counsel claims.

24
CR-21-0109

I.A. Guilt-Phase Claims

I.A.1

Wilson first argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective for "filing an

untimely and insufficiently supported motion for change of venue."

(Wilson's brief, p. 10.) Wilson's argument is without merit.

In his initial petition, Wilson alleged that his counsel were

ineffective because they filed a motion for a change of venue "less than

six weeks before the then-scheduled trial date of November 3, 1997."

(Supp. C. 34.) Wilson said that the "lateness" of the filing meant that the

trial court could not hold a hearing on the motion until October 23, 1997,

and that his counsels' delay caused "this meritorious motion to be

rejected in part because it was untimely." (Supp. C. 34.) According to

Wilson, "[b]ut for the untimely nature of this pleading, the motion would

have been granted, for the evidence presented in support of the motion

was overwhelming." (Supp. C. 34.)

The circuit court dismissed Wilson's claim "for several reasons." (C.

420.)

"First, it is not pleaded with sufficient specificity. Wilson's
allegation that the motion would not have been granted if filed

25
CR-21-0109

earlier is merely a conclusion for which no factual basis is
pleaded. Further, he pleads no facts establishing a reasonable
probability that the outcome of his trial would have been
different had counsel filed the motion to transfer venue
sooner.

"Second, it is clear from the record that Judge Fay held
a hearing on the motion and denied it on the merits. Judge
Fay's October 24, 1997 order states:

" 'MOTION FOR CHANGE OF VENUE.
After a full hearing on this motion, and after the
Court having viewed a number of video tapes and
read exhibits introduced by the Defendant, the
Court finds that this motion is due to be denied at
this time based on the evidence submitted at the
hearing. The Court specifically notes that this
motion is denied on its merits, although the motion
was not timely presented as contemplated by Rule
10 of the Alabama Rules of Criminal Procedure.'

"(citations omitted.)

"Thus, Wilson cannot establish prejudice under the
Strickland standard in regard to the timing of the motion.
Further, ... the trial court's denial of Wilson's motion for
change of venue was raised on appeal. The Court of Criminal
Appeals found that the trial court did not abuse its discretion
in denying Wilson's motion for change of venue. Wilson v.
State, 777 So. 2d at 926. Wilson can therefore not establish
prejudice under Strickland."

(C. 420-21.) We agree with the circuit court's judgment.

As set out above, Wilson alleged that his counsels' motion for a

change of venue was "meritorious," but the trial court denied the motion

26
CR-21-0109

because it was untimely filed. As the circuit court pointed out in its order

dismissing this claim, however, the trial court denied Wilson's change-of-

venue motion because it lacked merit, not because it was untimely. Thus,

Wilson's claim that his counsel were ineffective for failing to file a motion

for a change of venue earlier is without merit, and the circuit court

properly dismissed his claim under Rule 32.7(d), Ala. R. Crim. P., because

there is "no material issue of fact or law" that exists that "would entitle

[Wilson] to relief" and because "no purpose would be served by any

further proceedings" on this claim.

What is more, the circuit court correctly dismissed Wilson's claim

because he failed to sufficiently plead facts showing that he was

prejudiced by his counsels' allegedly "untimely" filing. Because the

circuit court denied Wilson's motion on the merits, it is clear that even if

Wilson's counsel had filed the motion for a change of venue earlier, the

result of the proceeding would have been the same. Indeed, as the circuit

court noted in its order, this Court affirmed the trial court's judgment

denying Wilson's motion for a change of venue on its merits, holding:

"After examining the media materials the appellant
presented to the trial court, we conclude that those materials
did not contain prejudicial information. Rather, most of the
reports were factual and relatively objective rather than

27
CR-21-0109

accusatory, inflammatory, or sensational. Further, the
appellant did not show that the media coverage inflamed or
saturated the community so that there was an emotional tide
against him. Therefore, he has not shown that the pretrial
publicity about his case was so inherently or presumptively
prejudicial as to constitute one of those 'extreme situations'
that warrant a presumption of prejudice caused by pretrial
publicity."

Wilson v. State, 777 So. 2d at 925. Although Wilson makes the bare

allegation that, if his counsel had "timely" filed the motion, then "the

motion would have been granted," Wilson does not plead any facts as to

how the trial court's merits analysis would have differed had his counsel

filed the motion earlier. Accordingly, the circuit court did not err when

it summarily dismissed this claim.

I.A.2

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective for failing to

adequately challenge for cause veniremembers unqualified for stating

they could not presume Mr. Wilson innocent, or otherwise indicated they

could not give him a fair trial." (Wilson's brief, p. 12.) Wilson's argument

is without merit.

In his initial petition, Wilson alleged that his counsel were

ineffective

28
CR-21-0109

"for failing to adequately challenge for cause against
unqualified veniremembers who said that they would not be
able to give Mr. Wilson the presumption of innocence, or
otherwise indicated they would be unable to give [him] a fair
trial. Counsel did not make any challenge for cause against a
veniremember who said that he would require Mr. Wilson to
prove his innocence. (R. 587-88.) Mr. Wilson failed to make
adequate objection or provide proper authority to support
challenges against other veniremembers, including
veniremembers with significant and unsurmountable bias
against Mr. Wilson or his counsel. See, Claim XV, infra, which
is incorporated herein by reference. As a result, Mr. Wilson
was forced to use peremptory challenges to remove these
biased veniremembers."

(Supp. C. 35-36.) In "Claim XV," which Wilson incorporated by reference

in his claim of ineffective assistance of counsel, Wilson alleged that "three

veniremembers plainly indicated that they were unfit to serve on [his]

jury[;] nonetheless [they] were not removed for cause." (Supp. C. 88.)

Wilson said that "Juror [B] believed that Mr. Wilson would have to prove

his innocence," that Juror "[M] informed the court that her daughter's

fiancé was murdered, and that [Wilson's counsel] represented the

accused murderer," and that Juror "[G] indicated that she knew the

family of one of the victims, had been to the store that they operated, and

that she attended the same church as the family." (Supp. C. 88-89.)

The circuit court summarily dismissed this claim as follows:

29
CR-21-0109

"Wilson questions counsel's failure to challenged juror [B] for
cause. The record is clear, however -- as confirmed by the
Court of Criminal Appeals -- that juror [B] was struck for
cause. Wilson, 777 So. 2d at 915 ( ... 'it appears from the strike
list included in the record that the trial court did indeed
excuse venire member J.B. for cause.')

"Wilson also cites counsel's failure to successfully
challenge jurors [M] and [G]. The Court of Criminal Appeals
reviewed the issue whether those jurors should have been
excused for cause, finding no error (or, in the case of [M], no
plain error.) Wilson, 777 So. 2d at 915. Wilson's petition
pleads no facts showing how he was prejudiced by counsel's
failure to challenge these jurors, and pleads no facts showing
a reasonable probability that the result of his trial would have
been different if a challenge had been made. Because this
claim is insufficiently pleaded, it is dismissed pursuant to
Rule 32.6(b), Ala. R. Crim. P.

"To the extent that [his petition] challenges counsel's
actions with regard to other jurors, such claim lacks
specificity. Wilson does not identify which other jurors should
have been challenged for cause, and does not identify the
answers or statements upon which he bases his claim that a
challenge for cause should have been made."

(C. 425.) We agree with the circuit court's judgment.

To start, the circuit court correctly dismissed Wilson's claim that

his counsel was ineffective for not having Juror B struck for cause

because the record on direct appeal (and this Court's opinion affirming

Wilson's conviction and sentence) shows that the trial court removed

Juror B for cause based on his responses during voir dire. See Wilson,

30
CR-21-0109

777 So. 2d at 913-15. Consequently, Wilson cannot show that he was

prejudiced by his counsels' alleged failure to move to have Juror B struck

for cause. Indeed, common sense dictates that counsel cannot be

ineffective for failing to do what was actually done. Thus, the circuit

court properly dismissed Wilson's claim.

The circuit court also correctly dismissed Wilson's claim that his

counsel was ineffective for failing to challenge Juror M for cause when

Juror "[M] informed the court that her daughter's fiancé was murdered,

and that [Wilson's counsel] represented the accused murderer." (Supp C.

88.) Wilson's claim, as pleaded, fails to show that the prospective juror

should have been struck for cause; thus, it fails to show that his counsels'

performance was deficient or that he was prejudiced by his counsels'

alleged deficient performance.

In Wilson's direct appeal, this Court explained the standard used

to determine whether a juror may be removed for cause as follows:

" 'Section 12-16-150, Code of Alabama 1975,
provides that, when a juror "has a fixed opinion as
to the guilt or innocence of the defendant which
would bias his verdict," a challenge for cause is
proper. Nobis v. State, 401 So. 2d 191 (Ala. Crim.
App.), cert. denied, 401 So. 2d 204 (Ala. 1981). The
juror must have more than a bias, or fixed opinion,
as to the guilt or innocence of the accused. The

31
CR-21-0109

juror's opinion must be fixed to the point that it
would bias the verdict which the juror would be
required to render. Johnson v. State, 356 So. 2d
769 (Ala. Cr. App. 1978); McCorvey v. State, 339
So. 2d 1053 (Ala. Cr. App.), cert. denied, 339 So. 2d
1058 (Ala. 1976); Tidmore v. City of Birmingham,
356 So. 2d 231 (Ala. Crim. App. 1977), cert. denied,
356 So. 2d 234 (Ala. 1978).'

"Thomas v. State, 539 So. 2d 375, 380 (Ala. Cr. App.), aff'd,
539 So. 2d 399 (Ala. 1988), cert. denied, 491 U.S. 910, 109 S.
Ct. 3201, 105 L. Ed. 2d 709 (1989). Also,

" ' "[u]ltimately, the test to be applied is
whether the juror can set aside [his] opinions and
try the case fairly and impartially, according to the
law and the evidence. This determination again is
to be based on the juror's answers and demeanor
and is within the discretion of the trial judge.
Thus, a prospective juror should not be
disqualified for prejudices or biases if it appears
from his or her answers and demeanor that the
influence of those prejudices and biases can be
eliminated and a verdict rendered according to the
evidence." '

"Marshall v. State, 598 So. 2d 14, 16 (Ala. Cr. App. 1991)
(citations omitted) (quoting Knop v. McCain, 561 So. 2d 229,
232 (Ala.1989))."

Wilson, 777 So. 2d at 912-13.

In his direct appeal, Wilson argued (just as he does in his Rule 32

petition) that Juror M should have been struck for cause because Juror

M's "daughter's fiancé was murdered and defense counsel represented

32
CR-21-0109

the person accused of committing the murder." Id. at 915. This Court,

reviewing Wilson's claim for plain error, see Rule 45A, Ala. R. App. P.,

rejected Wilson's argument, holding:

"During voir dire examination, [Juror M] stated that she did
not have any animosity toward defense counsel, that defense
counsel's participation in the previous case would not affect
her decision in this case, that she would not hold the State to
a higher burden of proof than is required by law, and that she
would not expect the defendant to take the stand or otherwise
present any defense. (R. 494-95.) From these answers, the
trial court could have reasonably concluded that [Juror M]
was not biased against the appellant. Therefore, we do not
find any plain error in this regard."

Wilson, 777 So. 2d at 915.

In other words, this Court held that the substantive claim

underlying Wilson's ineffective-assistance-of-counsel claim did not rise to

the level of plain error. Although it is true that this Court's finding of no

plain error on direct appeal does not preclude "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), "situations where no plain error rises to the level of error

under Strickland [are] 'rare.' " White v. State, 343 So. 3d 1150, 1185 (Ala.

Crim. App. 2019). This is not one of those rare situations where no plain

error rises to the level of prejudice under Strickland. What is more,

33
CR-21-0109

Wilson pleaded no facts in his petition or in any of his amendments

thereto showing what additional arguments his counsel could have raised

or what other additional authorities his trial counsel could have

presented to show that Juror M harbored the type of prejudice or bias

that is required to sustain a strike for cause. Thus, the circuit court did

not err when it dismissed this claim.

Additionally, the circuit court properly dismissed Wilson's claim

that his counsel were ineffective for failing "to make adequate objection

or provide proper authority to support" striking for cause Juror G when

that juror "indicated that she knew the family of one of the victims, had

been to the store that they operated, and that she attended the same

church as the family." (Supp. C. 88-89.) Indeed, on direct appeal this

Court rejected the substantive argument underlying Wilson's claim of

ineffective assistance of counsel, holding:

"[T]he appellant contends that the trial court should have
excused [Juror G] for cause because she knew the Hemphill
family, had been to the store the family operated, and
attended the church the family attended. During voir dire
examination, [Juror G] indicated that, even though she had
been to the family's store and to the church members of the
family attended, she did not know the family well. Rather,
she simply recognized them when she saw them. (R. 471.)
Also, she stated that she would not be biased against the
appellant because of any knowledge she might have about the

34
CR-21-0109

Hemphill family. (R. 471.) In refusing to excuse [Juror G] for
cause, the trial court specifically stated that it remembered
[Juror G] stating that she could be fair and that she knew the
Hemphill family only vaguely. (R. 537.) Knowledge of the
victim's family, alone, does not justify a challenge for cause.
See McKinney v. State, 654 So. 2d 95 (Ala. Cr. App. 1995).
Therefore, the trial court did not err in refusing to excuse
[Juror G] for cause."

Wilson, 777 So. 2d at 915. Because the substantive claim underlying

Wilson's claim of ineffective assistance of counsel is without merit, his

allegation that his counsel were ineffective fails. See Carruth v. State,

165 So. 3d 627, 645 (Ala. Crim. App. 2014) (recognizing that counsel is

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

Finally, as the circuit court correctly concluded, to the extent that

Wilson's claim of ineffective assistance of counsel refers to other jurors,

that claim is insufficiently pleaded because Wilson failed to identify by

name any juror his counsel should have moved to strike for cause. See

Stallworth v. State, 171 So. 3d 53, 84-85 (Ala. Crim. App. 2013) (holding

that Stallworth failed to sufficiently plead his claim that his counsel was

ineffective for failing to strike for cause certain jurors when Stallworth

failed to identify by name the jurors who should have been challenged for

cause).

Accordingly, Wilson is due no relief on this claim.

35
CR-21-0109

I.A.3

Next, Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective "for failing to

object to gender discrimination during jury selection" in violation of

J.E.B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).

(Wilson's brief, p. 13.)

In his initial petition, Wilson alleged that his counsel was

ineffective because

"[t]he District Attorney in this case used twelve of his sixteen
peremptory strikes, or 75%, to remove women from the venire.
Counsel's failure to object to the State's gender discrimination
meant that the State never had to give reasons for its facially
discriminatory strikes. Had Mr. Wilson's counsel properly
objected, the State would have been forced to attempt to
justify its strikes, something it could not have done. This
failure of Mr. Wilson's counsel denied Mr. Wilson his right to
equal protection of the laws and an impartial jury."

(Supp. C. 36.) Wilson also raised a substantive J.E.B. claim in his

petition, in which he again alleged that the State "used its peremptory

strikes to remove twelve women from Mr. Wilson's jury, leaving only

three women on the jury." (Supp. C. 70.) According to Wilson, the

number of peremptory strikes the State used to remove women from the

36
CR-21-0109

venire "establishes a prima facie case of impermissible gender

discrimination." (Supp. C. 71.)

The circuit court, in its order summarily dismissing Wilson's

petition, addressed Wilson's substantive J.E.B. claim and his claim of

ineffective assistance of counsel based on his counsels' failure to raise a

J.E.B. claim together, finding as follows:

"Wilson claims that the State unconstitutionally used 12
of its 16 peremptory strikes to remove women from the venire.
This claim was reviewed for plain error on appeal. The Court
of [Criminal] Appeals quoted from the decision of the Alabama
Supreme Court in Ex parte Trawick, 698 So. 2d 162, 168 (Ala.
1997): 'Without more, we do not find that the number of
strikes this prosecutor used to remove women from the venire
is sufficient to establish a prima facie case of gender
discrimination.' After thoroughly reviewing the record on
appeal, the Court concluded that it did not raise any inference
that the State engaged in purposeful discrimination against
women in its use of peremptory challenges. The Court found
no plain error on this issue. Wilson, 777 So. 2d at 889.

"Because this issue was raised on appeal, further review
is precluded by Rule 32.2(4), Ala. R. Crim. P. This claim is
dismissed.

"Counsel's failure to object to the State's use of its
peremptory strikes described above forms the basis of
Wilson's [ineffective-assistance-of-counsel] claim .... Wilson
failed to plead facts showing how he was prejudiced by
counsel's failure to object, and failed to plead facts
establishing a reasonable probability that the result would
have been different had counsel objected. Because this claim

37
CR-21-0109

is not sufficiently pleaded, it is dismissed pursuant to Rule
32.6(b), Ala. R. Crim. P."

(C. 405-06.) We agree with the circuit court's judgment.

As the circuit court correctly noted, in his direct appeal, Wilson

argued (just as he does in his Rule 32 petition) that "the prosecution's use

of 12 of its 16 peremptory challenges to remove women from the venire

establishes a prima facie showing of gender-based discrimination."

Wilson, 777 So. 2d at 888. This Court, reviewing Wilson's argument for

plain error, found as follows:

" 'Alabama courts have recently held that
even a showing that [a] party had struck a high
percentage of strikes used against a minority was
not alone enough. In Ex parte Trawick, 698 So. 2d
162, 168 (Ala. 1997), the Alabama Supreme Court
held, "Without more, we do not find that the
number of strikes this prosecutor used to remove
women from the venire is sufficient to establish a
prima facie case of gender discrimination."

" '....

" 'According to the record, the appellant in
this case relied solely upon the fact that seven of
the eight veniremembers struck by the prosecutor
were black. According to the Alabama Supreme
Court in Ex parte Trawick as well as the United
States Supreme Court's interpretation of the
burden in equal protection cases, these bare
statistics were not sufficient to make a prima facie
showing of discrimination.'

38
CR-21-0109

"Armstrong v. State, 710 So. 2d 531, 533-35 (Ala. Cr. App.
1997).

"After thoroughly reviewing the record on appeal, we
conclude that it does not raise any inference that the
prosecution engaged in purposeful discrimination against
women in its use of its peremptory challenges. Furthermore,
the appellant's arguments in his brief do not raise such an
inference. Accordingly, we do not find any plain error in this
regard."

Wilson, 777 So. 2d at 888-89.

In his Rule 32 petition, Wilson alleged that his counsel were

ineffective for failing to raise a J.E.B. claim based on only the number of

peremptory strikes the State used to remove women from the venire.

Again, although it is true that this Court's finding on direct appeal that

there was no plain error does not preclude "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 at 1078,

"situations where no plain error rises to the level of error under

Strickland [are] 'rare.' " White, 343 So. 3d at 1185. This is not one of

those rare situations where a finding of no plain error rises to the level of

prejudice under Strickland. Because Wilson's claim of ineffective

assistance of counsel rests on numbers alone, his allegation does not set

39
CR-21-0109

forth any facts that would entitle him to any relief on his claim. See

Largin v. State, 233 So. 3d 374, 403 (Ala. Crim. App. 2015) ("The State's

use of 22 of 29 strikes against female veniremembers does not raise an

inference of discrimination."). Thus, Wilson's claim does not entitle him

to any relief, and the circuit court did not err when it summarily

dismissed his claim.

Accordingly, Wilson is due no relief on this claim.

I.A.4

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

effectively advocate for youthful offender status or adequately object to

failing to grant [him] youthful offender status." (Wilson's brief, p. 14.)

Wilson's argument is without merit.

In his initial petition, Wilson alleged as follows:

"Counsel was ineffective for failing to effectively
advocate in support of Mr. Wilson's application for youthful
offender status or to adequately object to the trial court's
failure to grant youthful offender status. Counsel was
ineffective for failing to investigate, argue, or provide proper
authority to the trial court during or after the extremely short
youthful offender hearing (R. 2-3), which is fully described in
Claim XIV, infra, and incorporated herein by reference.
Counsel's failure to advocate or make an adequate objection
resulted in Mr. Wilson's conviction and death sentence."

40
CR-21-0109

(Supp. C. 39.) In Claim XIV, which Wilson incorporated by reference into

his claim of ineffective assistance of counsel, Wilson alleged that the trial

court erred when it failed to grant him youthful-offender status because,

he said, if "the trial court properly considered Wilson's age, lack of prior

criminal history, employment record, it would have likely granted [his]

application for youthful offender status." (Supp. C. 87.)

The circuit court summarily dismissed Wilson's claim as follows:

"Counsel's failure to effectively advocate in support of
the youthful offender application, or object to its denial, forms
the basis for Wilson's [ineffective-assistance-of-counsel] claim
in Claim I, Paragraph 25. He also claims that his counsel was
ineffective for failing to investigate, argue or provide proper
authority to the trial court during or after the hearing. He
then asserts that counsel's failures resulting in Wilson's
conviction and death sentence.

"Wilson's argument in his regard is nothing more than
blaming trial counsel for failing to succeed. 'A defendant
attorney ... is not ineffective solely because his client is
sentenced to death.' Fleming v. Kemp, 748 F.2d 1435 (11th
[Cir.] 1984). This claim is dismissed, first, because it is
inefficiently pleaded. Wilson cites no facts establishing what
else counsel should have done to advocate for youthful
offender status. He pleaded no facts showing how he was
prejudiced by counsel's omission, or facts establishing a
reasonable probability that the result would have been
different if counsel had said something else. Further,
Counsel's 'failure to object' in no way barred appellate review
of the trial court's decision. Indeed, the issue was thoroughly
reviewed by the Court of Criminal Appeals, who concluded:

41
CR-21-0109

" 'Clearly, the trial court considered the
circumstances and nature of the case, as well as
the Charge itself, in denying the application.
Accordingly, it did not abuse its discretion in
denying the appellant's request to be treated as a
youthful offender.'

"Wilson, 777 So. 2d at 923. Because it is insufficiently
pleaded, Wilson's Claim I, Paragraph 25 is dismissed. Rule
32.6(b), Ala. R. Crim. P."

(C. 410-11.) We agree with the circuit court's judgment.

Indeed, although Wilson alleged in his petition that his counsel

were ineffective for failing "to investigate, argue, or provide proper

authority to the trial court during or after the extremely short youthful

offender hearing" (Supp. C. 39), Wilson did not set out with any specificity

precisely what other arguments or authorities his counsel should have

presented to the circuit court. Nor did Wilson set out any facts showing

what his counsel could have learned if they had conducted any further

investigation that could have affected the outcome of his youthful-

offender hearing. Thus, Wilson's claim was insufficiently pleaded, and

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

Accordingly, Wilson is due no relief on this claim.

I.A.5

42
CR-21-0109

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

move to suppress/preclude [his] custodial statements after invocation of

his right to remain silent in violation of [his] Fifth, Sixth, Eighth, and

Fourteenth Amendment rights, and his multiple invocations of his right

to remain silent." (Wilson's brief, p. 15.) Wilson's argument is without

merit.

In his initial petition, Wilson alleged that his counsel were

ineffective for "not asking the court to suppress in-custody statements

made by the defendant after invocation of his right to remain silent."

(Supp. C. 40.) To support his claim that his counsel should have moved

to suppress his in-custody statements, Wilson alleged:

"Although the authorities testified that Mr. Wilson initially
signed a waiver of rights form, Mr. Wilson told authorities --
including police investigators Charles Franklin and Dwight
Edger -- that he did not want to answer questions about the
crime. (R. 912, 919.) In fact, part of the evidence which the
state sought to introduce at trial was an audiotape containing
the defendant's voice, telling his interrogators 'a minimum of
five times that he wasn't talking to them, was through talking
to them.' (R. 1367.) After questioning did not cease, however,
Mr. Wilson eventually submitted to respond to questions from
investigator Kevin Turner at approximately 6:30 AM and
made several inculpatory statements which were admitted
against him at trial. (R. 920-22.) In these statements, Mr.
Wilson purportedly said that he was present at the crime

43
CR-21-0109

scene, that he participated in striking a victim, that he was
involved in the shooting, and referred to the co-defendants as
his 'crew.' Turner also gave testimony concerning Mr.
Wilson's demeanor during the questioning. (R. 922.) ... It was
ineffective of trial counsel to not seek to have this evidence
excluded."

(Supp. C. 40-41.) Wilson further alleged that his counsel were ineffective

"for failing to object to the State's comments on [his] exercise of his right

to remain silent during opening and closing statements." (Supp. C. 41.)

To support his claim, Wilson incorporated by reference facts from his

substantive claim that the State improperly commented on his post-

Miranda silence. In that claim, Wilson alleged:

"From the very outset of the trial, through the
evidentiary phase, and then at closing argument, the State
impressed upon the jury that Mr. Wilson did not a) give a
statement to the police and b) did not testify at the guilt phase
of the trial. The first reference came during the State's
opening argument. (R. 631.) Once the evidentiary phase of
the trial began, the State deliberately elicited testimony about
Mr. Wilson's decision to not give a statement to the police,
from two separate police witnesses. (R. 912, 915-916.)
Describing and stressing Mr. Wilson's invocation of his Sixth
Amendment right to counsel was grossly improper and
prejudicial to Mr. Wilson."

(Supp. C. 71.)

44
CR-21-0109

The circuit court summarily dismissed Wilson's claims (addressing

both his claim of ineffective assistance of counsel and the substantive

claims underlying that claim) as follows:

"Wilson alleges that prosecutors deliberately and
improperly elicited testimony from two separate police
witnesses about his decision not to give them a statement, and
improperly commented about his failure to testify during the
guilt phase of trial. This issue was raised on appeal. The
Court of Criminal Appeals noted that Wilson never invoked
his right to remain silent during questioning by law
enforcement officers, and in fact did make a statement to one
officer in which he admitted his involvement in the offense.
Further, the Court concluded that the prosecutor's comment
regarding 'what he testified to a year ago in jail' referred to a
comment Wilson made to a cellmate and the use of 'testified'
was a misstatement by the prosecutor. Wilson, 777 So. 2d at
890.

"Because this issue was raised on appeal, further review
is precluded, and this claim is dismissed. Rule 32.2(4), Ala.
R. Crim. P.

"Counsel's failure to object to the foregoing forms the
basis of Wilson's [ineffective-assistance-of-counsel] claim in
Claim I, Paragraph 29. Wilson cites no facts showing how he
was prejudiced by counsel's failure to object, and further cites
no facts showing a reasonable probability that the result of
the trial would have been different had counsel objected.
Because this claim is insufficiently pleaded, it is dismissed
pursuant to Rule 32.6(b), Ala. R. Crim. P."

(C. 406-07.)

In raising his argument on appeal, Wilson challenges only the part

45
CR-21-0109

of the circuit court's judgment finding "that the underlying claim was

belied by the record" because, he says, "the record on its face is not

dispositive." (Wilson's brief, p, 17.) Wilson does not address the circuit

court's finding that his claim of ineffective assistance of counsel was

insufficiently pleaded. Thus, "[Wilson] has failed to satisfy the

requirements in Rule 28(a)(10)[, Ala. R. App. P.,] and is deemed to have

waived this claim." Woodward v. State, 276 So. 3d 713, 747 (Ala. Crim.

App. 2018). Even so, the circuit court correctly concluded that Wilson

failed to sufficiently plead any facts showing how he was prejudiced by

his counsels' performance.

As set out above, Wilson alleged that his counsel should have moved

to suppress his in-custody statements to law enforcement after he

invoked his right to remain silent. To support his claim, Wilson pointed

to testimony presented at his trial concerning the statements that he

made to law enforcement after, he said, he invoked his right to remain

silent. But, as the circuit court noted, in Wilson's direct appeal, this

Court addressed Wilson's argument about his "post-Miranda" silence,

finding that

"[t]here is no indication in the record that the appellant ever
invoked his right to remain silent during questioning by law

46
CR-21-0109

enforcement officers. See Hardy v. State, 804 So. 2d 247 (Ala.
Cr. App. 1999). Rather, the testimony indicates that he
waived his right to remain silent and agreed to talk to the
officers. The comments and testimony about which the
appellant complains are not improper references to his post-
Miranda silence. Rather, they are references to his waiver of
his right to remain silent and the statements he made after
that waiver. Even though he was reluctant to answer the
questions some of the officers asked, he did not at any time
clearly invoke his right to remain silent. Furthermore, error,
if any, was harmless because the evidence against the
appellant was overwhelming and because he actually made a
statement to one officer in which he admitted his presence at
the crime scene and his involvement in the offense."

Wilson, 777 So. 2d at 890.

In his petition Wilson cited portions of the record in his direct

appeal detailing his statements to law enforcement, but Wilson alleged

no facts that rebut this Court's finding on direct appeal that he never

invoked his right to remain silent. Because he failed to plead such facts,

Wilson has not alleged sufficient facts to show that his counsels'

performance was deficient or that his counsels' performance prejudiced

him. Thus, Wilson failed to satisfy his burden of pleading his claim of

ineffective assistance of counsel, and the circuit court did not err when it

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.6

47
CR-21-0109

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective for "failing to

adequately object to errors in the jury instructions." (Wilson's brief, p.

17.) The totality of Wilson's argument on appeal is as follows:

"Trial counsel was ineffective for failing to adequately
object to errors in the jury instructions which prejudiced Mr.
Wilson because it authorized the jury to convict him without
unanimity and without finding the requisite intent. This
deficient performance included failing to provide proper
authority in objecting and failing to propose instructions to
that accurately set forth the law. This deficient performance
resulted in Mr. Wilson's conviction and death sentence.

"This claim was dismissed under Rule 32.2(4) as raised
on direct appeal. Rule 32.2(4); (PCR. 404.) However, the court
erroneously conducted no analysis of ineffectiveness under
Strickland v. Washington."

(Wilson's brief, pp. 17-18.) Because Wilson's argument does not provide

this Court with any argument or authorities explaining how the circuit

court's judgment summarily dismissing this claim is incorrect, his

argument does not satisfy Rule 28(a)(10), Ala. R. App. P. Thus, his

argument is waived. See Travis v. State, [Ms. CR-18-0973, Mar. 24,

2023] ___ So. 3d ____, ____ (Ala. Crim. App. 2023). Even so, Wilson's

argument is without merit.

48
CR-21-0109

In his initial petition, Wilson alleged that his trial counsel were

ineffective when they failed "to adequately object to errors in the trial

court's jury instructions which authorized the jury to convict Mr. Wilson

without unanimity and without finding the proper level of intent." (Supp.

C. 47.) Wilson further alleged that his counsel failed "to provide proper

authority to the trial court in opposition to these errors," and failed to

"propos[e] instructions to the trial court which would comport with the

law." (Supp. C. 47.) Wilson claimed that his counsels' errors "resulted in

[his] conviction and death sentence." (Supp. C. 47.) Wilson also raised a

substantive claim concerning the trial court's jury instructions, which he

incorporated by reference in his claim of ineffective assistance of counsel.

In raising his substantive claim, Wilson alleged that, to convict him

of the charged capital offense, the State "had to prove that Mr. Wilson

intentionally killed at least two of the [four] victims." (Supp. C. 67.)

Wilson claimed that the evidence presented at his trial showed that

Acklin was responsible for the deaths and, thus, that "the question as to

which deaths [he] was responsible for was critical." (Supp. C. 67.)

According to Wilson, the trial court erred because "it failed to instruct the

jury that they had to unanimously find beyond a reasonable doubt that

49
CR-21-0109

[he] intentionally killed the same two victims." (Supp. C. 67.) Wilson

claimed that, because of this error, "some jurors could have concluded

that [he] killed two particular victims while other jurors could have

concluded that [he] killed a different two victims." (Supp. C. 67.) Wilson

also alleged that the trial court erred when it instructed the jury on the

lesser-included offense of intentional murder because, he argues, "the

jury should have had the option of finding that [he] had committed four

intentional murders to accommodate the conclusion that the killings did

not occur in a single scheme or course of conduct." (Supp. C. 68.)

The circuit court summarily dismissed Wilson's claim of ineffective

assistance of counsel and his substantive claim as follows:

"Each of the foregoing claims, and other claimed errors
in the trial court's charge, were raised on appeal. The Court
of Criminal Appeals concluded that '[Wilson's] contention that
the trial court's jury instructions deprived him of a fair trial
and an accurate sentence determination is without merit.'
Wilson, 777 So. 2d at 887.

"Because this issue was raised on appeal, further review
is precluded by Rule 32.2(4). This claim is dismissed.

"Wilson's [ineffective-assistance-of-counsel] claim ... is
based on counsel's failure to object to the jury charges outlined
above. He cites no facts to establish how he was prejudiced
by counsel's failure to object, nor does he cite facts
establishing a reasonable probability that the result of his
trial would have been different had counsel objected. Because

50
CR-21-0109

this claim is insufficiently pleaded, it is dismissed pursuant
to Rule 32.6(b), Ala. R. Crim. P."

(C. 404.)

As the circuit court noted, in Wilson's direct appeal, Wilson raised

several arguments concerning the trial court's jury instructions. As to

Wilson's argument that the court failed to "instruct the jury that it had

to unanimously find that he committed the capital offense" and "had to

find that he intentionally killed two of the decedents," this Court

explained:

"The trial court's instruction on the capital offense was
almost identical to the pattern jury instruction on the capital
murder of two or more people pursuant to a single scheme or
course of conduct. 'A trial court's following of an accepted
pattern jury instruction weighs heavily against any finding of
plain error.' Price v. State, 725 So. 2d 1003, 1058 (Ala. Cr.
App. 1997), aff'd, 725 So. 2d 1063 (Ala. 1998), cert. denied, 526
U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999). Also,
the trial court thoroughly instructed the jury on principles of
complicity or accomplice liability. Finally, from the verdict
forms, it is clear that the jurors unanimously agreed that the
appellant was responsible for the murders of all four of the
decedents. Accordingly, we do not find any plain error in this
instance."

Wilson, 777 So. 2d at 885 (emphasis added). As to his argument that the

circuit court failed to "properly instruct the jury that he had to have the

specific intent to kill at least two of the decedents to be found guilty of

51
CR-21-0109

the capital offense" and that it "did not instruct the jury on the

particularized intent necessary to support a capital murder conviction,"

this Court explained:

"The record refutes these arguments. During its oral charge,
the trial court specifically instructed the jury on intent with
regard to each decedent and explained that that intent must
be a particularized intent to kill. When read in conjunction
with the trial court's instructions on complicity or accomplice
liability, the trial court sufficiently instructed the jury on
intent. Therefore, the appellant's argument is without merit."

Wilson, 777 So. 2d at 885. As to his argument that the court did not

properly instruct the jury "on intentional murder because it stated that

intentional murder 'is the death of one individual,' " and, thus, it

"prevented the jury from finding that he intentionally killed more than

one of the decedents but that the killings did not occur as part of one

scheme or course of conduct," this Court explained:

"In instructing the jury on intentional murder, the trial
court substantially followed the pattern jury instruction on
intentional murder. As stated above, the trial court also
substantially followed the pattern jury instruction for the
capital murder of two or more people pursuant to a single
scheme or course of conduct. These facts weigh heavily
against a finding of plain error. See Price, supra. Moreover,
the phrase 'single scheme or course of conduct' was not so
technical that the jurors could not use their common sense to
interpret and understand it. As we stated in Roberts v. State,
735 So. 2d 1244, 1252 (Ala. Cr. App. 1997):

52
CR-21-0109

" 'The word "intent" is not a term of art or
legal jargon. It is a commonly used and
understood word with a clear meaning. Moreover,
as the United States Supreme Court has
recognized:

" ' "Jurors do not sit in solitary
isolation booths parsing instructions
for subtle shades of meaning in the
same way that lawyers might.
Differences among them in
interpretation of instructions may be
thrashed out in the deliberative
process, with common sense
understanding of the instructions in
the light of all that has taken place at
the trial likely to prevail over technical
hairsplitting."

" 'Boyde v. California, 494 U.S. 370, 380-81, 110 S.
Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990).

" 'In this case, the jurors' common sense
understanding was sufficient; the court was not
required to define the term. No plain error
occurred. See Williams v. State, 710 So. 2d 1276
(Ala. Cr. App. 1996).'

"Finally, as stated in Part I of this opinion, under the
facts of this case, there was simply no rational basis for a
finding that the appellant intentionally murdered more than
one of the decedents, but that he was not guilty of the capital
offense. Therefore, the appellant's arguments are without
merit.

Wilson, 777 So. 2d at 886.

53
CR-21-0109

Although Wilson bootstrapped each of these substantive jury-

instruction arguments to claims in his Rule 32 petition that his counsel

were ineffective, Wilson failed to plead sufficient facts to show that he

was entitled to any relief on this claim. Indeed, as the circuit court

correctly found when it summarily dismissed this claim of ineffective

assistance of counsel, Wilson "cites no facts to establish how he was

prejudiced by his counsel's failure to object, nor does he cite facts

establishing a reasonable probability that the result of his trial would

have been different had counsel objected." (C. 404.) Thus, the circuit

court did not err when it summarily dismissed his claim.

Accordingly, Wilson is due no relief on this claim.

I.A.7

Wilson also argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective for failing to

adequately object or provide authority opposing the admission of highly

prejudicial photographs that served only to inflame the passions of the

jury." (Wilson's brief, p. 18.)

In his initial petition, Wilson alleged that his counsel were

ineffective for failing to "adequately object or provide authority in

54
CR-21-0109

opposition to the trial court's admission of highly prejudicial photographs

which had no purpose but to inflame the passions of the jury." (Supp. C.

48.) Wilson also raised a substantive claim addressing the trial court's

admission of these photographs, which he incorporated by reference in

his claim of ineffective assistance of counsel. In his substantive claim,

Wilson alleged that he "sought to have prejudicial and inflammatory

photographs properly barred from his trial, and repeatedly objected to

the State's use of gory autopsy and crime scene photographs." (Supp. C.

96.)

The circuit court summarily dismissed both claims, finding:

"Wilson claims that admission into evidence of gory
autopsy and crime scene photographs 'served little or no
purpose except to arouse the passion, prejudice, or sympathy
of the jury.'

"This issue was raised on appeal. The Court concluded
that each photograph admitted was relevant to show the
crime scene and injuries each victim suffered, and found no
error in their admission. Wilson, 777 So. 2d at 929.

"Because this issue was raised on appeal, it is precluded
from further review pursuant to Rule 32.2(4). This claim is
dismissed.

"Counsel's failure to object to admission of the
photographs described above forms the basis for Wilson's
[ineffective-assistance-of-counsel] claim .... Wilson pleads no
facts showing how he was prejudiced by counsel's failure to

55
CR-21-0109

object, and pleads no facts showing a reasonable probability
that the result of his trial would have been different had
counsel objected. Because this claim is insufficiently pleaded,
it is dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P."

(C. 416.)

As the circuit court correctly noted in dismissing Wilson's

substantive claim, in Wilson's direct appeal, this Court addressed his

argument that the "trial court erroneously admitted photographs that

served only to inflame the passions of the jury." Wilson, 777 So. 2d at

928. This Court rejected Wilson's argument, holding that, "[a]fter

reviewing the photographs that were admitted into evidence in this case,

we conclude that they were relevant to show the crime scene and the

injuries each victim suffered. Therefore, the trial court did not err in

admitting them into evidence." Wilson, 777 So. 2d at 929.

Because this Court in Wilson's direct appeal held that the

substantive claim underlying Wilson's assertion of ineffective assistance

of counsel is without merit, his allegation that his counsel were

ineffective for failing to object to the admission of the photographs fails.

See Carruth, supra. Thus, the circuit court did not err when it summarily

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

56
CR-21-0109

I.A.8

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to retain

any forensic experts to help investigate the evidence brought against

him, and to assist them in their representation." (Wilson's brief, p. 20.)

Wilson's argument is without merit.

In his initial petition, Wilson alleged that his trial counsel were

ineffective for failing to "obtain expert assistance" to "examine the State's

forensic evidence and review the planned testimony of State experts."

(Supp. C. 38.) According to Wilson, if his counsel had retained expert

assistance, they would have "uncovered numerous examples of

unprofessional, unreliable, and untrustworthy forensic investigation."

(Supp. C. 38.) In his petition, however, Wilson did not identify by name

any expert witness his counsel should have hired.

" 'When addressing a similar claim that
counsel was ineffective for failing to secure the
presence of an expert, this Court in Daniel v. State,
86 So. 3d 405 (Ala. Crim. App.2011), stated:

" ' "Daniel failed to identify, by
name, any forensic or DNA expert who
could have testified at Daniel's trial or
the content of the expert's expected
testimony. Accordingly, Daniel failed

57
CR-21-0109

to comply with the full-fact pleading
requirements of Rule 32.6, Ala. R.
Crim. P. See McNabb v. State, 991 So.
2d 313 (Ala. Crim. App. 2007) (claim
that counsel was ineffective for failing
to retain an expert not sufficiently
pleaded because expert was not
identified); Woods v. State, 957 So. 2d
492 (Ala. Crim. App. 2004), rev'd on
other grounds, 957 So. 2d 533 (Ala.
2006) (claim of ineffective assistance of
counsel not sufficiently pleaded
because Woods failed to identify an
expert by name).'

" '86 So. 3d at 425-26. As we stated previously, to
sufficiently plead a claim that counsel was
ineffective in failing to secure the services of an
expert, the petitioner must identify the expert by
name and plead his/her expected testimony.'

"Woods v. State, 221 So. 3d 1125, 1138-39 (Ala. Crim. App.
2016)."

Brooks v. State, 340 So. 3d 410, 458 (Ala. Crim. App. 2020) (emphasis

added).

Because, as the circuit court correctly found in its order dismissing

this claim, "Wilson fail[ed] to identify what experts counsel should have

retained" (C. 427), the circuit court did not err when it dismissed this

claim as insufficiently pleaded.

Accordingly, Wilson is due no relief on this claim.

58
CR-21-0109

I.A.9

Wilson similarly argues that the circuit court erred when it

summarily dismissed his claim that his counsel were ineffective for

failing "to obtain[] the assistance of an independent mental health expert

to evaluate [him] for evidence relevant to theories of guilt." (Wilson's

brief, p. 23.) But Wilson did not identify by name any mental-health

expert whom his counsel should have hired to evaluate him. (See Supp

C. 39.) Because, as the circuit court correctly found in its order

dismissing this claim that "Wilson [did] not identify who should have

been retained" (C. 428), the circuit court did not err when it dismissed

this claim as insufficiently pleaded. See Brooks, supra.

Accordingly, Wilson is due no relief on this claim.

I.A.10

Wilson also argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to

meaningfully cross-examine witnesses." (Wilson's brief, p. 23.)

Specifically, Wilson argues that his counsel were ineffective in their

cross-examinations of the State's expert witnesses, in their cross-

examination of Ashley Rutherford, and in their cross-examination of

59
CR-21-0109

witnesses who provided informant testimony. Wilson's arguments are

without merit.

In his petition, Wilson alleged that his counsel were ineffective in

their cross-examination of the State's expert witnesses because, he says,

their

"failure to obtain expert assistance resulted in particularly
ineffective cross examination of the three expert witnesses
called by the state, Dr. Kenneth Warner, a Medical
Pathologist from the Alabama Department of Forensic
Science[s] (R. 1129), Morris G. Brown, Jr, a toolmarks expert
from the Department of Forensic Science[s] (R. 1201), and
Brent Wheeler, a trace evidence and firearms expert who is
the Director of the Department of Forensic Services in
Huntsville (R. 1282.) With the aid of expert assistance, cross
examination of these witnesses would have revealed the
substantial flaws and weaknesses of these witnesses'
testimony."

(Supp. C. 42-43.) Wilson further alleged that his counsel were

"egregiously ineffective during the cross examination of [Ashley]

Rutherford" because

"through his own questions, defense counsel elicited
testimony of prior bad acts, including that Mr. Wilson had
previously sold drugs to Rutherford (R. 1057), and that, in
Rutherford's opinion, Mr. Wilson was responsible for
Rutherford's addiction to cocaine. (R. 1068.) This evidence
was irrelevant to any aspect of the trial and had an
extraordinary tendency to bias the minds of the jurors against
Mr. Wilson."

60
CR-21-0109

(Supp. C. 43.) Finally, Wilson alleged that his counsel "failed to

effectively cross examine witnesses who provided informant testimony to

the state in exchange for consideration in their own criminal cases"

because his counsel

"did not adequately impeach those witnesses with their own
criminal histories or attack the biases of these witnesses.
Counsel also did not make effective use of impeachment
information it gained from third parties. (R. 63, 72, 83-84.)
Defense counsel's failure to engage in effective cross
examination of all the state's witnesses violated Mr. Wilson's
right to confront the witnesses against him and resulted in his
conviction and sentence of death."

(Supp. C. 43.)

The circuit court summarily dismissed Wilson's claim that his

counsel were ineffective in their cross-examination of the State's expert

witnesses as insufficiently pleaded and found as follows:

"The petition fails to specify what questions should have been
asked on cross-examination. The responses that those
questions would have elicited is also absent. The 'substantial
flaws and weaknesses of the witnesses' testimony' are not
specified. Wilson fails to plead facts showing how he was
prejudiced, and fails to plead facts showing a reasonable
probability that the result of his trial would have been
different had counsel cross-examined these witnesses
differently."

(C. 433-34.) We agree with the circuit court's judgment.

61
CR-21-0109

In Stanley v. State, 335 So. 3d 1, 21 (Ala. Crim. App. 2020), this

Court addressed a similar claim alleging that trial counsel was

ineffective for failing to adequately cross-examine a State's witness. The

circuit court in Stanley, just as the circuit court did here, found that

Stanley's claim was insufficiently pleaded in part because Stanley failed

to plead facts showing what the answers to the unasked questions would

have been had his counsel asked those questions on cross-examination.

This Court agreed with the circuit court's judgment and affirmed its

conclusion that Stanley's claim was insufficiently pleaded.

Here, not only did Wilson fail to allege what answers the State's

expert witnesses would have given had counsel cross-examined them

differently, Wilson also failed to allege what questions his counsel should

have asked to those expert witnesses. And to the extent that Wilson

alleged that his counsel were ineffective for failing to retain expert

assistance to aid in questioning the State's expert witnesses, Wilson did

not identify by name any expert his counsel should have hired. Thus, the

circuit court properly found that Wilson's claim was insufficiently

pleaded.

62
CR-21-0109

Next, the circuit court summarily dismissed Wilson's claim that his

counsel were "egregiously ineffective" in their cross-examination of

Rutherford as follows:

"The evidence at trial established that Ashley
Rutherford was shot in the head by Nick Acklin, not Joey
Wilson. Rutherford nevertheless gave damaging testimony
against Wilson, repeatedly testifying that Wilson was the
'ringleader' that evening. Taking into consideration all of
Rutherford's testimony, this Court concludes that counsel
introduced the subject of drug use -- Rutherford's as well as
Wilson's -- to show Rutherford's bias against Wilson. When
asked by the prosecutor about his previous relationship with
Wilson, Rutherford testified as follows:

" Q. (Mr. Taylor) How long have you known Joey Wilson?

"A. (Mr. Rutherford) About a year and a half.

"Q. (Mr. Taylor) And when you say a year and a half are
you referring to a year and a half before this event?

"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Taylor) Before September, before the killings?

"A. (Mr. Rutherford) About a year and a half.

"Q. (Mr. Taylor) Describe to this jury what kind of social,
or professional if it was, contact that you had with Joey
Wilson. How was it that you came to meet Joey Wilson?

"A. (Mr. Rutherford) Just social.

"Q. (Mr. Taylor) Would there be social gatherings where
you would come in contact with the defendant, Joey Wilson?

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"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Taylor) What is your best estimate, as far as
how often he would see Joey Wilson in that year and a half
leading up to the killings?

"A. (Mr. Rutherford) Almost every day.

"Q. (Mr. Taylor) All right. What was your relationship
with Joey -- I am talking about good or bad -- for the most
part?

"A. (Mr. Rutherford) I guess you would say in between.

"(R. 989-990)

"Clearly, the direct examination of Rutherford would
lead one to believe that he and Wilson were friends who saw
each other 'almost every day' in the year and a half before the
shootings.

"The record further reveals that Wilson's trial counsel
performed a thorough and exhaustive cross-examination of
Rutherford, and one of his main goals was to demonstrate that
the picture painted by Rutherford about his relationship with
Wilson was false. Toward that end, the following exchanges
occurred:

"A. (Mr. Rutherford) The last question you asked me,
you are talking about -- what time frame are you talking
about? I had not talked to Joey for about six months.

"Q. (Mr. Gladden [(defense counsel)]): I am talking about
the year or year and a half that you knew him.

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CR-21-0109

"A. (Mr. Rutherford): That I knew him. Okay. From
April and May I had no contact with him. I had not gone to
his house, I had not done nothing.

"(R. 1054) (emphasis added)

"....

"Q. (Mr. Gladden): Okay. About a week before the 25th
they had come by, and as I am understanding you, to buy some
drugs from you?

"A. (Mr. Rutherford) Yes -- well, I didn't know why they
were coming over there. That's what they ended up talking
about.

"Q. (Mr. Gladden): And you had some there for sale?

"A. (Mr. Rutherford) Not me, no sir.

"Q. (Mr. Gladden) Not you?

"A. (Mr. Rutherford) No, sir.

"Q. (Mr. Gladden) Your house?

"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Gladden): Somebody else that sold out of your
house?

"A. (Mr. Rutherford) No, it wasn't -- I mean, they weren't
constantly selling out of my house. It wasn't a constant thing,
no sir. We just happened to have an ounce -- well, we ended
up having three-fourths of an ounce at that time.

"Q. (Mr. Gladden) Kept in your house?

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"A. (Mr. Rutherford) No. He had just gotten it the day
before.

"Q. (Mr. Gladden) What about yourself?

"A. (Mr. Rutherford) I didn't have any.

"Q. (Mr. Gladden) I'm sorry. You have lost me again, I
thought you said you each had an ounce or three-fourths of an
ounce?

"A. (Mr. Rutherford) No, no. I said we had gotten an
ounce, and there was only three-quarter left.

"Q. (Mr. Gladden) Okay. I'm with you now. What had
you done with the remainder? Had it been sold or used?

"A. (Mr. Rutherford) Smoked.

"Q. (Mr. Gladden) Smoked?

"A. (Mr. Rutherford) Yes.

"Q. (Mr. Gladden): Now, you also grew some marijuana
there at your house, did you not?

"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Gladden) So would it be a correct and fair
statement to say that during the time that you knew or had
an acquaintance with Joey, you would buy drugs from him, he
would buy drugs from you?

"A. (Mr. Rutherford) He didn't buy any from me. I
bought it from him.

"(R. 1055-57).

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"....

"Q. (Mr. Gladden) Now, you had become about six
months prior to that I guess extremely upset with Joey, hadn't
you?

"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Gladden) He had refused to deal with you
anymore because you had developed a bad cocaine problem,
hadn't you?

"A. (Mr. Rutherford) No sir. Well, I had developed a
cocaine habit, but it was introduced to me by him.

"Q. (Mr. Gladden) But you had developed it and he just
didn't want to deal with you anymore isn’t that the truth?

"A. (Mr. Rutherford): I don't know about not wanting to
deal with me.

"Q. (Mr. Gladden) Well, he quit dealing with you, didn't
he?

"A. (Mr. Rutherford): I quit dealing with him.

"Q. (Mr. Gladden): All right. And that's what happened
about six months prior to the 25th of September?

"A. (Mr. Rutherford) Yes, sir.

"Q. (Mr. Gladden) Now, is that the reason or one of the
reasons that everything that occurred the week before and on
September 25th that you specifically said Joey Wilson and
nobody else?

"A. (Mr. Rutherford) No, sir.

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"(R. 1068-69).

"During his cross examination, counsel used the
foregoing to attack Rutherford's account of Wilson's
involvement. Regarding the stolen cell phone that
precipitated the murders, he got Rutherford to admit that he
named only Wilson in his report to law enforcement, even
though others were present, and he never saw Wilson take the
phone. (R. 1061) He got Rutherford to concede that when he
initially spoke with Officer Salmonsky, he named only Joey
Wilson as the perpetrator even though he knew 'without a
doubt' that Acklin, not Wilson, shot him in the head. (R. 1062).
When Rutherford said that he made that statement because
Wilson was the 'ringleader,' [Wilson's trial counsel] first got
him to admit that he learned that term from the District
Attorney's office and the Sheriffs Department, (R. 1063), then
obtained the following admission:

"Q. (Mr. Gladden): Mr. Rutherford, isn't it true that Nick
Acklin was the one that as the actual shooting started was
telling everybody what to do, was telling somebody to go start
the car, was telling that there ain't going to be nobody to leave
here, right before he shot you in the head. Isn't that the case?

"A. (Mr. Rutherford) And also --

"Q. (Mr. Gladden) Isn't that correct? Yes or no.

"A. (Mr. Rutherford) Yes, sir.

"(R. 1065)

"Based upon the foregoing, this Court finds that a
reasonable lawyer could have concluded that any potential
risk in mentioning Wilson's drug use was worth presenting to
the jury, especially since Rutherford admitted his drug use as
well, and especially in light of Wilson's defense strategy that
he only shot one person, preventing the crime from being

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elevated to capital murder. In fact, given the facts Gladden
had to work with, one wonders whether Gladden's
performance would have been considered deficient had he not
introduced evidence of Rutherford's bias against Wilson.
Gladden's cross-examination could have given the jury reason
to believe that Rutherford was attempting to color his
testimony in an effort to obtain a capital murder conviction
against Wilson based on the fact that Wilson quit dealing
drugs to Rutherford or based on the fact that Wilson
introduced Rutherford to cocaine, to which he became
addicted. In fact, in his closing argument, Gladden argued:

"I think it's pretty obvious that Ashley Rutherford hated
Joey Wilson's guts from a long time back, but they still spoke,
they still interacted. Why would Ashley Rutherford, knowing
full well that Nick Acklin just put a gun to his head and pulled
the trigger, and seeing nothing else that went on, upon his
first contact with law enforcement he said, 'Joey Wilson did
it.' Now does that not say that somebody has started out to
make sure that no matter what the facts are, Joey Wilson is
going to suffer the consequences for it all? I think that's as
clear a statement of that as you can find, or that you will ever
be able to find. He sat right up here and told you that's exactly
what he did, knowing full well that otherwise Nick Acklin shot
him.

"(R. 1574)

" In any event, Wilson has failed to plead facts showing
how he was prejudiced by Gladden's cross-examination of
Rutherford, and has failed to plead facts showing a reasonable
probability that the result of his trial would have been
different if Gladden has cross-examined Rutherford
differently. Because this claim is insufficiently pleaded it is
dismissed pursuant to Rule 32.6(b) Ala. R. Crim. P., and
because it fails to state a claim upon which relief may be
granted pursuant to Rule 32.7(d), Ala. R. Crim. P."

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(C. 434-39 (footnote omitted).) We agree with the circuit court's

judgment.

Indeed, this Court has held:

" ' "[D]ecisions regarding whether and how to
conduct cross-examinations and what evidence to
introduce are matters of trial strategy and tactics."
Rose v. State, 258 Ga. App. 232, 236, 573 S.E. 2d
465, 469 (2002). " ' "[D]ecisions whether to engage
in cross-examination, and if so to what extent and
in what manner, are ... strategic in nature." ' "
Hunt v. State, 940 So. 2d 1041, 1065 (Ala. Crim.
App. 2005), quoting Rosario-Dominguez v. United
States, 353 F. Supp.2d 500, 515 (S.D.N.Y. 2005),
quoting in turn, United States v. Nersesian, 824
F.2d 1294, 1321 (2d Cir. 1987). "The decision
whether to cross-examine a witness is [a] matter
of trial strategy." People v. Leeper, 317 Ill. App.
3d 475, 483, 251 Ill. Dec. 202, 209, 740 N.E.2d 32,
39 (2000).'

"A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007).
' "[T]he scope of cross-examination is grounded in trial tactics
and strategy, and will rarely constitute ineffective assistance
of counsel." ' Bonner v. State, 308 Ga. App. 827, 828, 709
S.E.2d 358, 360 (2011) (quoting Cooper v. State, 281 Ga. 760,
762, 642 S.E.2d 817, 820 (2007))."

Stanley v. State, 335 So. 3d 1, 37 (Ala. Crim. App. 2020).

Here, as the circuit court found, Wilson's trial counsel's cross-

examination of Rutherford was based on his decision to show

Rutherford's bias against Wilson even though the testimony involved

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CR-21-0109

prior bad acts of both Rutherford and Wilson. Although Wilson's Rule 32

counsel disagrees with Wilson's trial counsel's strategy and would have

cross-examined Rutherford differently, Wilson's trial counsel was not

constitutionally ineffective in his cross-examination of Rutherford. What

is more, as the circuit court correctly found, Wilson failed to plead

sufficient facts showing how he was prejudiced by his counsel's allegedly

deficient performance. At most, Wilson pleaded a conclusory allegation

of prejudice, which does not satisfy Wilson's burden of pleading a claim

of ineffective assistance of counsel. See Mashburn v. State, 148 So. 3d

1094, 1107 (Ala. Crim. App. 2013) (holding that a bare allegation of

prejudice is insufficient to satisfy the pleading requirement for a claim of

ineffective assistance of counsel). Thus, the circuit court properly

dismissed this claim.

Finally, the circuit court summarily dismissed Wilson's claim that

his counsel were ineffective in their cross-examination of the State's

informant witnesses as follows:

"Wilson next argues that trial counsel was ineffective for
failing to effectively cross-examine witnesses who provided
informant testimony in exchange for consideration of their
own criminal cases. He argues that counsel did not
adequately impeach those witnesses with their own criminal
histories or attack the bias of those witnesses. Neither these

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CR-21-0109

witnesses nor the criminal history and bias that could have
been used to impeach them is specified in the petition.
Wilson's citations to the record in support of this claim
mention only two individuals, Greg Tribble and Travis
Hatfield. Those individuals did not testify, so Gladden did not
have the opportunity to cross-examine them. This claim is
therefore dismissed for failure to state a claim upon which
relief can be granted. Rule 32.7(d), Ala. R. Crim. P."

(C. 440.) We agree with the circuit court's judgment.

Again, Wilson failed to plead sufficient facts to support his

allegation of ineffective assistance of counsel. As the circuit court pointed

out, although Wilson alleged that his counsel did not impeach these

unnamed witnesses with their criminal histories or attack their biases,

Wilson did not set out any facts showing what those biases or criminal

histories were. Nor did Wilson allege any facts establishing that he was

prejudiced by his counsels' alleged deficiencies. What is more, as the

circuit court also pointed out, the only named informant witnesses that

could be deciphered from examining Wilson's citations to the record in

his petition were Greg Tribble and Travis Hatfield, neither of whom

testified at Wilson's trial; therefore, Wilson's trial counsel had no

opportunity to cross-examine or impeach those witnesses. Thus, Wilson's

claim was both insufficiently pleaded and without merit.

Accordingly, Wilson is due no relief on this claim.

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I.A.11

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were ineffective when they

"failed to effectively advocate for a jury instruction on the lesser-included

offense of felony murder, because, when asked, trial counsel could not

provide a rational basis for the instruction." (Wilson's brief, p. 29.)

Wilson's argument is without merit.

In his direct appeal, Wilson argued that the "trial court erred in not

instructing the jury on the lesser included offense of felony murder."

Wilson, 777 So. 2d at 876. This Court recognized that Wilson's counsel

"requested that the trial court instruct the jury on felony murder" but

"did not object when the trial court refused to do so." We reviewed

Wilson's argument for plain error and determined "that an instruction on

felony murder would not be appropriate." Id. This Court, after defining

felony murder, held as follows:

"[T]he offense of felony murder involves an intended felony
and an unintended homicide. See Williams v. State, 601 So.
2d 1062 (Ala. Cr. App. 1991), aff'd, 662 So. 2d 929 (Ala.), cert.
denied, 506 U.S. 957, 113 S. Ct. 417, 121 L. Ed. 2d 340 (1992).
Finally, with regard to instructions on lesser included
offenses, § 13A-1-9(b), Ala. Code 1975, provides: 'The court
shall not charge the jury with respect to an included offense

73
CR-21-0109

unless there is a rational basis for a verdict convicting the
defendant of the included offense.' (Emphasis added.)

"[Wilson] argues that, without an instruction on felony
murder, 'there was no way that the jury could reconcile
convicting [him] of one intentional murder, two attempted
murders, and still hold him accountable for the remaining
three homicides.' (Appellant's brief at p. 4.) Under his theory
that he shot only one victim, if he were not found to be an
accomplice, he would not be responsible for the attempted
murders of Rutherford or Hayden. Continuing under that
theory, there was no felony upon which to base a felony
murder conviction. Therefore, his argument is flawed.
Furthermore, although the appellant argues that he
intentionally killed only one person, the jury found that he
was responsible, as an accomplice, for killing the other three
decedents. The evidence in this case was overwhelming and
amply supported the jury's conclusion. Accordingly, under the
facts of this case, there was no rational basis for a verdict
convicting [Wilson] of felony murder, and the trial court's
refusal to give such an instruction did not rise to the level of
plain error."

Wilson, 777 So. 2d at 877.

In his petition, Wilson bootstrapped the substantive claim he raised

in his direct appeal to a claim of ineffective assistance of counsel, alleging

that "a felony murder [instruction] was warranted under the

circumstances of the case." (Supp. C. 44.) According to Wilson, "the

State's own theory of the case" was that Wilson "was committing the

crimes of kidnapping in the first degree, burglary in the first degree, and

other felonies clearly dangerous to human life at the time that Nicholas

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Acklin, another participant in the crime, caused the death of the first

victim." 4 (Supp. C. 44.) Wilson further alleged that the "State's theory"

of the case against him was that Wilson "and his co-defendants

imprisoned the victims for over an hour for the purpose of retaliating

against one of the victims for filing a criminal complaint against Mr.

Wilson for the theft of a cellular telephone" and that the "victims were

assaulted, threatened, and forced to promise that they would withdraw

the criminal complaint during the course of the incident," which, he said,

established first-degree kidnapping. Wilson also claimed that, "[t]he

facts of this offense, under the State's theory, supported Burglary, and

hence a felony murder instruction." (Supp. C. 45.) Finally, Wilson

alleged that "other felonies 'clearly dangerous to human life' are

implicated by the State's theory of the case," including "attempted

4In his brief on appeal, Wilson argues that "[t]he jury found [him]

guilty of committing felonies -- kidnapping and burglary -- based on the
state's contention he forcibly detained the victims in a dwelling to
terrorize them and interfere with their reporting of criminal activity."
(Wilson's brief, pp. 32-33.) As the State points out in its brief on appeal,
however, Wilson is incorrect because "[w]hile [he] was initially charged
in count 2 of the indictment with murder during burglary, that charge
was dismissed by the State before the jury began its guilt-phase
deliberations" and "Wilson was never indicted for, much less found guilty
of, kidnapping." (State's brief, p. 46.)
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murder" and "intimidating a witness." (Supp. C. 45.) Wilson said that

"[t]hese underlying felonies supported a felony murder instruction, for if

the jury concluded that [he] didn't have the requisite intent to kill, but

did commit the felonies, a felony murder instruction would have been the

proper verdict." (Supp. C. 46.)

The circuit court summarily dismissed Wilson's claim (along with

his substantive claim about the trial court's failure to instruct the jury

on the lesser-included offense of felony murder), as follows:

"This issue was addressed both at trial and on appeal.
As noted in the decision of the Court of Criminal Appeals
affirming defendant's conviction and sentence, trial counsel
requested that the court instruct the jury on the lesser offense
of felony murder, but did not object when the trial court
refused to do so. The appellate court nevertheless reviewed
the claim for plain error and concluded:

" 'The evidence in this case was overwhelming and
amply supported the jury's conclusion.
Accordingly, under the facts of this case, there was
no rational basis for a verdict convicting the
appellant of felony murder, and the trial court's
refusal to give such an instruction did not rise to
the level of plain error.'

"Wilson, 777 So. 2d at 877.

"Because this issue was raised on appeal, further review
is precluded. This claim is dismissed. Rule 32.7(d) Ala. R.
Crim. P.

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"This issue also forms the basis of Wilson's [ineffective-
assistance-of-counsel] claim .... He claims that trial counsel
failed to 'effectively advocate' for a felony murder jury
instruction. This claim is belied by the record, which
establishes that counsel did advocate for felony murder
charge, but ultimately agreed with Judge Fay that there was
no basis for the charge. (R. 1491-1505). In any event, Wilson
did not allege facts in support of his claim of prejudice, nor
facts to establish a reasonable probability that the result
would have been different had counsel objected. Because this
claim is insufficiently pleaded, it is dismissed pursuant to
Rule 32.6(b), Ala. R. Crim. P."

(C. 401-02.) We agree with the circuit court's judgment.

Indeed, as this Court explained in Wilson's direct appeal, the jury

found that Wilson intentionally killed one person himself and was an

accomplice to the killing of three other people; thus, Wilson had the

specific intent to kill four people. So, even if this Court assumed that

Wilson's argument that there were predicate felonies on which to base a

felony-murder instruction was true, there was no rational basis, based on

the evidence at Wilson's trial, to show that the four deaths in this case

were unintended. Wilson's failure to plead facts showing that there was

a rational basis to conclude that the deaths in this case were unintended

is fatal to his claim that his counsel were ineffective for failing to secure

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CR-21-0109

a felony-murder instruction. 5 Although Wilson pleaded facts showing

why he believed there existed underlying felonies on which to base a

felony-murder instruction, Wilson did not plead any facts to show that

any of the deaths were unintended by him. What is more, Wilson failed

to plead facts showing that he was prejudiced by his counsels' alleged

deficient performance because, as this Court noted in his direct appeal,

"[t]he evidence in this case was overwhelming" and, "under the facts of

this case, there was no rational basis for a verdict convicting [Wilson] of

felony murder." Thus, the circuit court did not err when it summarily

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.12

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his counsel were ineffective "for failing to call

5As the circuit court pointed out when it dismissed this claim,
Wilson's counsel did ask the circuit court to instruct the jury on felony
murder, but ultimately agreed with the circuit court that no such
instruction was warranted on the facts of Wilson's case.
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crucial impeachment witnesses." 6 (Wilson's brief, p. 33.) Wilson's

argument is without merit.

In his petition, Wilson alleged that his counsel were "ineffective for

not calling witnesses to impeach the use of informant testimony by the

state." (Supp. C. 46.) Wilson claimed that,

"[d]uring the trial, the state called three 'jailhouse informant
witnesses, Khristian Ashby, David Newby, and Brian Harris,
whose testimony was motivated by the promise of or hope for
consideration in their own criminal cases. (R. 936, 1180,
1397.) Counsel was ineffective to not impeach these witnesses
with their records and the nature of the deals each was
offered. Additionally, the defense had knowledge that the
state was soliciting testimony from other potential witnesses,
using coercion and promises, but which did not result in trial
testimony. The state entered an undisclosed written
agreement for testimony with Greg Tribble (R. 63), without
subsequently calling him for trial, and Travis Hatfield had
been threatened with being sent to jail on a possession charge
if he didn't testify in a certain way against Mr. Wilson. (R. 72,
83-84.) Based on this information, defense counsel
represented that it was necessary to call one of the

6In his brief on appeal, Wilson argues in passing that his trial
counsel "failed to make or preserve proper objections or seek to limit"
testimony, he says, was "irrelevant and highly prejudicial, "including
that Ashby had purchased drugs from Mr. Wilson, sold drugs for Mr.
Wilson, and previously heard Mr. Wilson refer to killing someone."
(Wilson's brief, p. 34.) Wilson, however, did not raise this specific claim
in his petition or any of his amendments thereto. Thus, it is not properly
before this Court for appellate review. See Arrington v. State, 716 So. 2d
237, 239 (Ala. Crim. App. 1997) (holding that "[a]n appellant cannot raise
an issue on appeal from the denial of a Rule 32 petition which was not
raised in the Rule 32 petition").
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prosecutors as a witness to these activities. (R. 64.) Defense
counsel was ineffective to not expose these highly improper
techniques employed by the state, and indeed did not follow
up on these leads or present any of this evidence at trial."

(Supp. C. 46.)

The circuit court dismissed Wilson's claim that his counsel were

ineffective for failing to call witnesses to impeach Khristian Ashby, David

Newby, and Brian Harris as insufficiently pleaded because Wilson failed

"to name a single witness who was available for such testimony, or how

that witness would have had personal knowledge necessary to impeach.

Further, his petition is silent as to why no reasonable lawyer would have

failed to discover and call such an unnamed witness to testify." (C. 441.)

We agree with the circuit court's judgment. This Court has consistently

held that to sufficiently plead a claim that counsel were ineffective for

failing to call witnesses to testify the petitioner must identify by name

the witnesses his or her counsel should have called to testify, what the

content of their testimony would have been, and that the witnesses were

willing and able to testify. Because Wilson failed to sufficiently plead his

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

The circuit court also dismissed Wilson's claim because it found

that, contrary to Wilson's allegations, his trial counsel "did impeach the

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State's use of informant testimony," and that his counsels' "cross-

examination of the informant witnesses was reasonable." (C. 442.)

Specifically, the circuit court found:

"The record shows that Gladden [-- Wilson's defense
counsel --] cross-examined each of these witnesses about deals
they may have made with the State. In Gladden's cross-
examination of Brian Harris, he elicited information to show
that Harris' bond had been reduced from an original amount
of $200,000 to $10,000. (R. 1406-07). Similarly damaging
cross-examination was conducted on Khristian Ashby (R. 945-
52, 954-72), and David Newby (R. 1187-1196, 1199). In fact,
during his closing argument in the guilt phase, Gladden
capitalized on these witnesses by arguing the following:

" 'Now, you have Joey Wilson up here in the
Madison County Jail charged with capital murder.
What happens? Have you ever been to Baskin
Robbin? You walk in and take a number and you
wait to be served. Well, folks, there is a Baskin
Robbins alive and well in the Madison County Jail.
You get somebody that is charged with a crime,
especially something along this line, you get 24
other men in their cell with them, and no telling
how many hundreds in the rest of the jail, and see
how many witnesses you come up with. I've got
number one. Number one being served now. Do
you want to testify against Joey Wilson? Oh, yes.
I would like vanilla. Listen to the testimony.

" 'They come up here and they tell you that
they don't expect anything out of these people. No
promises. I'm just going to do this because I want
to, because I'm a good citizen. Then listen to the
testimony as they -- first off, the Judge is going to
tell you and give you an instruction about the

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testimony of persons that have been convicted of
crimes. I want you to listen really closely when he
does. ... Secondly, I want you to please use your
common sense as to what these so-called witnesses
have to say and why they have to say it, why the[y]
would say it.'

"(R. 1585-87).

"Gladden's closing argument continued to attack the
credibility of these witnesses, based on his cross-examination:

" 'I believe you also heard a little testimony
out of Brian Harris. .... He said Joey was up there
[in jail] trying to sound like a big guy. A lot of
people do that when they get in jail. A lot of people
do that.

" 'Now, David Newby, when I asked him a
simple question had he ever sold drugs before? He
said no. Then when I showed him his statement
where it said he had sold some drugs before -- do
you remember me asking him, "Did you just lie to
this jury?" "Yes, I did" .... He had said "No, I’ve
never sold drugs." Look at this statement where it
says he has sold drugs.

" 'Brian Harris, he has got no problem. All he
is looking at is probably getting out of a life
sentence on his second or third drug conviction for
any of his testimony that he might give in this case
here today, but they didn't promise him anything.
That's not going to happen. I guess. Another thing
that is amazing to me is how you get a 95% bond
reduction, it didn't have a thing to do with this
case.'

"(R. 1587-88)."

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(C. 441-42.) We agree with the circuit court's judgment.

As explained above, this Court has held that

" ' "[t]he method and scope of cross-examination 'is a
paradigm of the type of tactical decision that [ordinarily]
cannot be challenged as evidence of ineffective assistance of
counsel.' " ' Davis v. State, 44 So. 3d 1118, 1135 (Ala. Crim.
App. 2009) (quoting State ex rel. Daniel v. Legursky, 195
W.Va. 314, 328, 465 S.E.2d 416, 430 (1995)). ' " '[D]ecisions
whether to engage in cross-examination, and if so to what
extent and in what manner, are ... strategic in nature.' " '
Hunt v. State, 940 So. 2d 1041, 1065 (Ala. Crim. App. 2005)
(quoting Rosario-Dominguez v. United States, 353 F. Supp. 2d
500, 515 (S.D.N.Y.2005), quoting in turn, United States v.
Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987))."

Bryant v. State, 181 So. 3d 1087, 1162 (Ala. Crim. App. 2011). Although

Wilson alleged that his counsel should have impeached Ashby, Newby,

and Harris, the circuit court correctly pointed out that his counsel did

precisely what Wilson claims they did not do. And although Wilson's

Rule 32 counsel would have impeached those witnesses differently,

Wilson's trial counsels' impeachment of those witnesses was not

constitutionally ineffective. Thus, the circuit court did not err when it

summarily dismissed this claim.

Finally, the circuit court dismissed Wilson's claim concerning

Tribble and Hatfield as follows:

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"Wilson's final claim in Paragraph 40 relates to the
State's investigation of Greg Tribble and Travis Hatfield as
potential witnesses. Wilson notes in his petition that neither
of these individuals testified at trial. As such, they are no
different from any other potential witness that could have
been, but was not called, by the State. The record
demonstrates that Gladden had uncovered the names of these
individuals during his investigation and preparation for trial,
and he asked for information necessary to challenge their
testimony had they been called. The State's decision not to
call them as witnesses in no way implies deficient
performance by Gladden. Likewise, because the jury never
heard about them or from them, Wilson cannot establish
prejudice by the State's involvement with them."

(C. 443.) We agree with the circuit court's judgment.

Indeed, Wilson did not adequately plead how his counsels'

performance was in any way deficient for not impeaching witnesses who

were not called to testify at his trial. Nor did Wilson plead any facts

showing that he was prejudiced by his counsels' alleged deficient

performance. Furthermore, to the extent that Wilson's claim could be

construed as alleging that his counsel were ineffective for failing to call

Tribble and Hatfield to testify to highlight the State's deals with other

witnesses, 7 Wilson failed to allege any facts explaining how calling

7As discussed in the Part II of this opinion addressing Wilson's
Brady claim, the State told Wilson's counsel that it never had a deal with
Hatfield, and, although it had worked out a deal with Tribble, that deal

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additional witnesses to highlight "deals" with the State would have

impacted the jury's decision in this case when, as the circuit court pointed

out, they were well aware of the deals the State had with the other

informant witnesses. Moreover, Wilson failed to allege that Tribble and

Hatfield were willing and available to testify at Wilson's trial. Thus, the

circuit court did not err when it dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.13

Wilson next argues that the circuit court erred when it summarily

dismissed his claim that his trial and appellate counsel were ineffective

"for failing to raise the pattern of improper peremptory strikes by the

Madison County District Attorney's Office, which is a relevant factor in

assessing the strength of a defendant's prima facie case against a State's

racially discriminatory use of peremptory strikes." (Wilson's brief, pp.

35-36.) Wilson's argument is without merit.

In his petition, Wilson alleged that his trial and appellate counsel

were ineffective "for failing to raise the fact that there is an apparent

was rescinded before the circuit court issued a discovery order in Wilson's
case when Tribble failed to work as a drug informant as he had agreed to
do.
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pattern in the use of peremptory strikes by the Madison County District

Attorney's Office that is a relevant factor to be considered in assessing

the strength of the defendant's prima facie case against the State for its

discriminatory use of peremptory strikes." (Supp. C. 165.) According to

Wilson, the "Madison County District Attorney's Office has been found

guilty of violating Batson[ v. Kentucky, 476 U.S. 79 (1986),] and has been

accused on several occasions of violating Batson due to its history or

striking blacks off the jury venire." (Supp. C. 165.) To support his claim

that the Madison County District Attorney had engaged in a pattern of

striking black jurors from cases, Wilson cited six opinions of this Court:

Moore v. State, 661 So. 2d 770 (Ala. Crim. App. 1995), Baker v. State, 683

So. 2d 1 (Ala. Crim. App. 1996), Bone v. State, 706 So. 2d 1291 (Ala. Crim.

App. 1997), Freeman v. State, 586 So. 2d 1013 (Ala. Crim. App. 1991),

Click v. State, 695 So. 2d 209 (Ala. Crim. App. 1997), and White v. State,

587 So. 2d 1218 (Ala. Crim. App. 1990). (Supp. C. 165-66.)

The circuit court summarily dismissed Wilson's claim as being

insufficiently pleaded and as being without merit, holding:

"Wilson alleges that trial counsel and appellate counsel
were ineffective for failing to argue there was a pattern by the
Madison County District Attorneys' Office of improperly using
race in striking potential jurors. To support this claim,

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Wilson cites six appellate cases in which the Madison County
DA's office was accused of violating Batson. The Court first
notes that only one conviction out of the six cited by Wilson
was reversed for a Batson violation. This Court does not find
that one Batson violation constitutes a pattern of racial
striking.

"In addition, Wilson has failed to plead any facts that, if
true, demonstrate how he was prejudiced by trial or appellate
counsel's failure to raise this issue. Wilson has identified no
black jurors that he claims were stricken in violation of
Batson. He fails to plead facts showing a reasonable
probability that the outcome of his case would have been
different if counsel had argued as he suggests they should
have. Because this claim is insufficiently pleaded, and
because it lacks merit, it is dismissed."

(C. 465.) We agree with the circuit court's judgment.

The Alabama Supreme Court has held that "a pattern in the use of

peremptory strikes" by a district attorney's office to remove black jurors

from the venire may be "a relevant factor to be considered ... in assessing

the strength of the defendant's prima facie case" under Batson. Ex parte

Bird, 594 So. 2d 676, 681 (Ala. 1991) (finding that, because judgments in

cases tried by the Montgomery County District Attorney's Office had

been reversed on four occasions for violating Batson, coupled with other

factors "supports the defendants' contentions and raises an inference of

discriminatory intent"). But Wilson pleaded no facts to establish such a

"pattern" by the Madison County District Attorney's Office. Instead, as

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the circuit court pointed out when it summarily dismissed Wilson's claim,

Wilson cited only one case -- Moore v. State, 661 So. 2d 770 (Ala. Crim.

App. 1994) -- in which a trial involving the Madison County District

Attorney's Office was reversed for violating Batson. One violation of

Batson does not establish a "pattern" of discrimination in the Madison

County District Attorney's Office. Accordingly, Wilson's trial and

appellate counsel were not ineffective for failing to argue that the

Madison County District Attorney's Office had a "history" of exercising

its peremptory strikes in a discriminatory manner.

Accordingly, Wilson is due no relief on this claim.

I.A.14

Wilson argues that the circuit court erred when it summarily

dismissed his claim that his trial counsel were "ineffective in failing to

object to the prosecutor's misconduct in making biblical arguments" and

his claim that his "appellate counsel was ineffective for failing to raise

the issue on direct appeal." (Wilson's brief, p. 37.) Wilson's argument is

without merit.

In his fourth amended petition, Wilson alleged that his trial and

appellate counsel were ineffective "for allowing the State to make the

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mercy and Biblical arguments, for failing to object to these arguments,

for failing to move for a mistrial, and/or failing to ask for limiting

instructions from the court, and ... for failing to raise these issues on

appeal." (Supp. C. 186.) Wilson also raised a substantive argument that

the State improperly "referred to Biblical passages indicating that mercy

is out of the question and death is mandatory penalty." (Supp. C. 173.)

The circuit court summarily dismissed Wilson's substantive claim

and his claim of ineffective assistance of counsel as follows:

"Wilson claims that portions of the State's rebuttal
closing argument referring to Biblical passages was
'extremely improper.' This substantive claim is procedurally
barred for review herein because it could have been but was
not addressed at trial. Rule 32.2(a)(3), Ala. R. Crim. P. It is
also procedurally barred because it could have been but was
not raised at trial or addressed on direct appeal. Rule
32.2(a)(3) and (5) Ala. R. Crim. P.

"Even if this claim were not procedurally barred, Wilson
would be entitled to no relief. In furtherance of his plea for
mercy, and the pleas for mercy made by Wilson and his father,
Gladden [-- Wilson's defense counsel --] made certain Biblical
references in his closing argument. The complained-of
remarks made by the prosecutor were made in the State's
rebuttal to Gladden's argument. It is well settled that 'a
prosecutor has a right based on fundamental fairness to reply
in kind to the argument of defense counsel.' DeBruce v. State,
651 So.2d 599, 609 (Ala. Crim. App 1993), aff'd., Ex Parte
DeBruce, 651 624 (Ala. 1994). Because this claim lacks merit,
it is dismissed pursuant to Rule 32.7(d) Ala. R. Crim. P.

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"Regarding Wilson's claim that trial and appellate
counsel were ineffective for failing to object to the foregoing,
he has pleaded no facts establishing a reasonable probability
that the result of his trial would have been different had such
objections been made. Because it is insufficiently pleaded,
this claim is dismissed pursuant to Rule 32.6(b)."

(C. 467-68.) We agree with the circuit court's judgment.

It is well settled that

" '[a] prosecutor has a right to reply in kind to the
argument of defense counsel. This "reply-in-kind" doctrine is
based on fundamental fairness.' Ballard v. State, 767 So. 2d
1123, 1135 (Ala. Crim. App. 1999). ' "When the door is opened
by defense counsel's argument, it swings wide, and a number
of areas barred to prosecutorial comment will suddenly be
subject to reply." ' Davis v. State, 494 So. 2d 851, 855 (Ala.
Crim. App. 1986)."

Thompson v. State, 153 So. 3d 84, 174 (Ala. Crim. App. 2012) (footnote

omitted). This Court has previously upheld a prosecutor's Biblically

based rebuttal argument replying to a defense counsel's argument

appealing to the Bible not to impose the death penalty. 8 See, e.g., Melson

8In Thompson, this Court noted that " '[a]lthough some states forbid

any biblical references in closing arguments -- State v. Berry, 141 S.W.
3d 549 (Tenn. 2004), and Fontenot v. State, 881 P.2d 69 (Okla. Crim. App.
1994) -- Alabama has recognized that "counsel's argument should not be
so restricted as to prevent reference, by way of illustration, ... to
principles of divine law or biblical teachings," [Ex parte] Waldrop, 459
So. 2d [959] at 963 [(Ala. 1984)]. However, we have also held that the
discretion to argue biblical references is not unlimited.' " 153 So. 3d at

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v. State, 775 So. 2d 857, 891-93 (Ala. Crim. App. 1999) ("We find that the

prosecutor's comments, when taken in context with the entire closing

arguments, were proper as a reply in kind to the Biblical argument made

by Melson's counsel during closing argument that no man 'dare judge the

life of another. That's up to God.' "). Here, the comments that Wilson

alleges his trial and appellate counsel were ineffective for not objecting

to at trial and for not raising as improper on appeal were permissible

replies in kind to the arguments Wilson's trial counsel made during his

penalty-phase closing argument.

Indeed, during the penalty phase of Wilson's trial, his trial counsel

argued to the jury the reasons why, he believed, it should not impose the

death penalty in Wilson's case, and then he made the following argument:

"I'm sure that some of you commit to some form of
Judeo-Christian belief, and if you believe that there is
something in any of the writings, including the Bible, that
says anything about you must take a life if a life is taken, I
submit to you that that is not even the present feeling of the
modern Christian churches. I don't think you will find that.
An eye for an eye and a tooth for a tooth is distorted. I believe
Jesus told you to love one another. I'm not asking you to love
anybody. I am asking you not to hate someone or have such
feelings toward someone that you will go past that which has
to be the ultimate punishment, never seeing the outside of the

174 n. 20 (quoting Gobble v. State, 104 So. 3d 920, 979 (Ala. Crim. App.
2010)).
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free world again. While I am on that subject, we are one of
the few civilized countries in the world that has a death
penalty. Think about that."

(Record in CR-97-2569, R. 1818-19.)

In response to Wilson's counsel's appeal to scripture not to impose

the death penalty in this case, the State argued the following:

"I submit to you that Joey Wilson does not really know
the meaning of the term mercy, until now. Now he has an
understanding of mercy and he hopes that you will develop
rather quickly here that he understands it, mercy. Not the
kind of mercy that was shown to Johnny Couch by him, not
the kind of mercy that was shown to Brian Carter by him, not
the kind of mercy that was shown to Michelle Hayden Mills
by him. Now he wants to talk to you about mercy. He wants
to talk to you about forgiveness. He may receive forgiveness
from his god at any moment he repents and asks his god for
forgiveness. If you believe, you will accept that. However, the
State of Alabama is not quite so forgiving. I can't speak for
the family. I have come to know them, but I cannot look into
their hearts and tell you whether or not they might find deep
seated in their Christian beliefs to forgive him. They might
and if they do I commend them. But this is not a court of
mercy. This is not a court of sympathy. This is a court of law.
What we pursue here is not forgiveness and it is not
sympathy. We pursue justice.

"Mr. Gladden talks to you about Jesus. Let me tell you
what he said. He said you have heard an eye for an eye and a
tooth for a tooth. But I say to you if a man slaps one side of
your face turn ye therefore the other cheek, or words like that.
Now, what the Old Testament required -- he is correct, an eye
for an eye and a tooth for a tooth, life for a life, a hand for a
hand. That was the Mosaic law in Deuteronomy. It was
there, an eye for an eye and a tooth for a tooth. But you know

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that in that same Levitican cult they did not allow you to
convict a man of a capital crime. They did not allow you to
put a man to death on the testimony of one witness. You had
to have at least two. You have heard both of them. Let me
tell you something else. I think you know what the Apostle
Paul said in this treatise to the Romans, that they are to be in
subjection to the authority, to follow the laws of Rome. Not
when in Rome do as the Romans, but to pay tribute, to pay
those taxes as they are required by Rome, to be in subjection
to the civil authority.

"Now let's move on from the scriptures and get back to
this case."

(Record in CR-97-2569, R. 1823-25.) In response to Wilson's counsel's

argument that the United States of America is "one of the few civilized

countries" that employs a death penalty against people who commit

capital murder, the State argued:

"We are told that of all the civilized countries in the
world only this one has the death penalty. Ladies and
gentlemen, I submit to you that there is not another country
in the world and has never been another country in which the
people, the citizens, have been provided so much freedom by
their government and had so little of it taken away. No
country in the history of the world has provided the protection
to its citizens and asked so little of them and taken so little
from them in their lives, their freedoms. But civilized, how
civilized was it in that little room on the 25th of September
almost two years ago when these seven young people were
treated like they were, and four of them were executed and
two of them were shot in a period of 10 to 15 seconds? How
civilized was that? Well, that's not representative of our
country, is it? Thank God, I hope it's not for things like that

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to happen. Somebody has to step up and be held accountable
for it."

(Record in CR-97-2569, R. 1828-29.) Then the State closed its rebuttal

argument as follows:

"You heard the family that testified. You heard them
testify and talked of their loss. They have told you how
different it is to lose one by a terminal illness, to lose your
father and your mother. You sort of expect that you have to
lose them sometime. This is different, ladies and gentlemen,
when your young son's life has been terminated at a very early
age. That is going to be with them -- it will never be away
from them for the rest of their lives. Johnny Couch, a great
loss to his family. Michael Beaudette will not make any more
coffee for his mother. Lamar Hemphill will never again have
the opportunity to do for his family. Brian Carter will never
have the opportunity to go to church again. But Joey Wilson
wants you to forgive him. Let God and these families worry
about forgiveness, ladies and gentlemen.

"....

"It is a difficult process to be involved in. Probably to
some of you never have you had to make such a momentous
decision as this. It is important to this side of the room and it
is important to that side of the room. I am not talking about
sides. I am talking about now accountability, accountability
for one's actions. You have gauged the credibility. You have
once found him accountable, and in this next stage we look
further to accountability. Don't let anyone say to you you are
taking his life, as he took the life of someone else. Ladies and
gentlemen, you are not going to take his life, whatever you
may say, whatever all 12 of you might say. You are doing your
duty. The Judge is not going to take his life. If it is taken, it
will be taken by the State applying the laws of this State. We
will render unto Caesar that which is Caesar's. Does Joey

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Wilson rate your forgiveness? That's not what you are here
for. You are here to render justice. I submit to you that the
verdict brought back from your deliberations should be that
Joey Wilson should pay the ultimate price and die in the
electric chair.

"Now, there has been a lot of talk here about death. We
all know something about death, or we all think we know
something about death, but to those who have looked in the
face of death, those who have stared eyeball to eyeball with it,
they have a different understanding of death. I ask that you
do your duty and that you will return to this honorable Court
a recommendation that Joey Wilson be put to death."

(Record in CR-97-2569, R. 1830-33.)

These complained-of arguments, when viewed in the context of the

entire closing statements during Wilson's penalty phase, including his

counsel's arguments, were permissible "reply-in-kind" arguments,

arguing for justice, and asking the jury to perform its duty, all of which

are proper in closing arguments. See Minor v. State, 914 So. 2d 372, 432

(Ala. Crim. App. 2004) ("We agree with the State that there was nothing

improper about the prosecutor's remarks. When read in context, it is

clear that the prosecutor was making a call for justice and for the jury to

perform its duty, both of which are proper subjects of closing argument.").

Because the complained-of comments were not impermissible, Wilson's

trial and appellate counsel were not ineffective for failing to raise

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objections and arguments concerning the comments. See Carruth, 165

So. 3d at 645 (recognizing that counsel is "not ineffective for failing to

raise a baseless objection). Thus, the circuit court did not err when it

dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.A.15

Wilson finally argues that "the cumulative effect of trial and

appellate counsels' errors violated [his] constitutional rights." (Wilson's

brief, p. 41.) Wilson's argument is without merit.

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
in Scott v. State, [Ms. CR-06-2233, March 26,
2010] [262] So. 3d [1239, 1253] (Ala. Crim. App.

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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 [Wilson'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).

Accordingly, Wilson is not due any relief on this claim.

I.B. Penalty-Phase Claims

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Wilson also argues that the circuit court erred when it summarily

dismissed his "numerous subclaims" of ineffective assistance of counsel

during the penalty phase of his trial. Wilson sets out the procedural

history of his penalty phase, briefly explains the claims of penalty-phase

ineffective assistance of counsel that he raised, and points out which

claims the circuit court summarily dismissed. He then argues that the

circuit court "did not follow this Court's direction on remand to carefully

consider whether to hold a hearing in this case" (Wilson's brief, p. 66),

"misapplied the pleading standards of Rule 32" (Wilson's brief, p. 68), and

"improperly applied the Rule 32 pleading standards in dismissing [his]

penalty phase ineffective assistance claims." (Wilson's brief, p. 69.) We

address each of Wilson's arguments in turn.

I.B.1

Wilson first argues that the circuit court's judgment summarily

dismissing his penalty-phase claims of ineffective assistance of counsel

"is counter to this Court's remand instruction and based on an affidavit

Mr. Wilson was never allowed to challenge." (Wilson's brief, p. 66.) This

argument is without merit.

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Initially, we question whether Wilson's claim is properly before this

Court for appellate review. This argument is raised for the first time on

appeal and is premised on Wilson's mistaken belief that in Wilson v.

State, 911 So. 2d 40 (Ala. Crim. App. 2005), this Court instructed the

circuit court to hold an evidentiary hearing on Wilson's claims of penalty-

phase ineffective assistance of counsel, particularly his claim that his

counsel failed to conduct any investigation into potential mitigation

evidence. Indeed, Wilson argues on appeal that "this Court instructed

[the circuit court] to consider and not dismiss summarily" his claims of

penalty-phase ineffective assistance of counsel. (Wilson's brief, p. 67

(emphasis added).) Wilson is incorrect.

As explained above in our discussion of the facts and procedural

history of this case, in Wilson, 911 So. 2d 40, this Court reversed the

circuit court's summary dismissal of Wilson's Rule 32 petition because it

did not accept Wilson's amended petition, in violation of Ex parte Rhone,

900 So. 2d 455 (Ala. 2004). This Court, in its remand instructions,

explained:

"On remand, the trial court is to conduct whatever
proceedings are necessary to fully address the properly
pleaded allegations in the petition, as amended. The State
must be afforded the opportunity to answer the allegations in

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the petition, as amended. Because the State has put forth
evidence in the form of trial counsel's affidavit, and because
the trial court indicated in its order that it had relied on the
State's answer when it summarily dismissed the petition, we
urge the trial court to give careful consideration to holding an
evidentiary hearing on the claims presenting factual disputes
so that both parties are afforded the right to present evidence
and to cross-examine any witnesses. See Ex parte MacEwan,
860 So. 2d 896, 897 (Ala. 2002) ('The summary dismissal of
MacEwan's petition deprived her of an opportunity to cross-
examine her trial counsel regarding the assertions he makes
in the affidavit, the substance of which may have prompted
the trial judge to dismiss the petition.').

"Of particular concern to this Court is Wilson's
allegation that trial counsel failed to conduct any
investigation into potential mitigation evidence and that his
decisions regarding trial strategy in both the guilt and penalty
phases were based on his inadequate investigation. If
Wilson's allegations are true, Wilson might be entitled to
relief on this claim. E.g., Wiggins v. Smith, 539 U.S. 510, 533,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003) (' "strategic choices
made after less than complete investigation are reasonable"
only to the extent that "reasonable professional judgments
support the limitations on investigation." [Strickland v.
Washington, 466 U.S. 668,] 690-91, 104 S. Ct. 2052, 80 L. Ed.
2d 674. A decision not to investigate thus "must be directly
assessed for reasonableness in all the circumstances." Id., at
691.'). See, also, Williams v. Taylor, 529 U.S. 362, 120 S. Ct.
1495, 146 L. Ed. 2d 389 (2000) (defense counsel rendered
deficient performance and Williams was prejudiced when
counsel failed to investigate and to present substantial
mitigating evidence to the sentencing jury); Brownlee v.
Haley, 306 F.3d 1043, 1074 (11th Cir. 2002) ('In this case,
counsel's absolute failure to investigate, obtain, or present
any evidence, let alone the powerful, concrete, and specific
mitigating evidence that was available, prevented the jurors
from hearing anything at all about the defendant before them.

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An individualized sentence, as required by the law, was
therefore impossible.'). This Court recognizes, as it did in its
opinion on direct appeal, that the evidence of Wilson's guilt
was overwhelming. Wilson v. State, 777 So. 2d 856, 933 (Ala.
Crim. App. 1999). That finding, however, does not preclude
Wilson from presenting and receiving review of his
postconviction claims in accordance with the mandates of
Rule 32. At a minimum, Wilson is entitled to a thorough
review of all of his properly pleaded claims, and he is entitled
to an opportunity to prove the allegations of those claims that
are not due to be summarily dismissed."

Wilson, 911 So. 2d at 47 (emphasis added).

In other words, this Court instructed the circuit court only to

consider holding an evidentiary hearing; it did not mandate that the

circuit court conduct such a hearing. Thus, Wilson's argument that the

circuit court's failure to conduct an evidentiary hearing on his penalty-

phase claims of ineffective assistance of counsel contravenes this Court's

remand instructions in Wilson, supra, is without merit, and, thus, he is

not entitled to any relief on this claim.

Additionally, Wilson's argument that the circuit court improperly

relied on his trial counsel's affidavit to dismiss his claim that his counsel

failed to investigate mitigation evidence does not entitle him to any relief.

In his brief on appeal, Wilson argues that he "made a serious claim (with

numerous subclaims), both then and now, that trial counsel was

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ineffective for failing to investigate and present mitigating evidence."

(Wilson's brief, p. 67.) Wilson further argues that the circuit court

"rejected these claims, based in part on the Gladden affidavit. Yet,

despite this Court's clear directive to keep in mind the parties' right to

cross-examine the witnesses, the trial court failed to conduct a hearing

upon remand, and instead, did nothing on the remand until after

Gladden died and could not be questioned." (Wilson's brief, p. 67

(emphasis added).)

Although Wilson appears to argue in his brief that the circuit court

dismissed multiple claims of penalty-phase ineffective assistance of

counsel based on his trial counsel's affidavit, in his brief, Wilson

highlights only one specific claim that the circuit court dismissed based

on his counsel's affidavit -- i.e., a claim raised in his second amended

petition. (See Wilson's brief, pp. 62-64.)

In his second amended petition, Wilson alleged that his counsel

were ineffective. In so doing, Wilson noted that, "[a]t the request of the

State," his trial counsel, Randall Gladden, executed an "affidavit

concerning his representation" of Wilson. (Supp. C. 126.) Thereafter,

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Wilson quoted a portion of Gladden's affidavit, and then he alleged that

Gladden's use of the term "excuse" when addressing mitigation

"shows that he does not understand the concept of mitigation.
Mitigation is never offered as an excuse or justification. It is
offered as an explanation to the jury in terms of the context of
the Defendant's life and maybe some of the factors that may
have led the Defendant to have gotten into the situation of his
criminal behavior and, in this case, that is alleged in the
indictment. So, again, the fact that Mr. Gladden equates the
mitigation with the excuse defense shows that he does not
understand the concept of mitigation or probably has not
understood or read Lockett v. Ohio and its progeny."

(Supp. C. 128.)

To the extent that Wilson's ad hominem argument about whether

Gladden actually understood the concept of mitigation was a stand-alone

claim of ineffective assistance of counsel, the circuit court disposed of

Wilson's claim as follows:

"Wilson alleges that Gladden was ineffective because he
'equate[d] mitigation with excuse.' Wilson uses this comment
in Gladden's affidavit to infer that Gladden did not
understand the concept of mitigation. However, Gladden's
affidavit goes on to say that '[b]ased on the specific facts of
this case, it just was not feasible to conduct a typical
mitigation presentation of background, upbringing, and/or
substance abuse issues.' Clearly, Gladden knew the type of
evidence that can constitute potential mitigation evidence.
This Court finds this claim to be without merit; it is therefore
dismissed. Rue 32.7(d), Ala. R. Crim. P."

(C. 455.)

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In other words, Wilson raised a claim of ineffective assistance of

counsel based on language his counsel used in an affidavit and the circuit

court used that same affidavit to show that Wilson's assertion was not

actually supported by the affidavit. Wilson cannot complain that the

circuit court relied on his trial counsel's affidavit to refute his claim based

on the same affidavit. But even if the circuit court improperly relied on

his trial counsel's affidavit, Wilson would still not be entitled to any relief

because his claim was insufficiently pleaded. Wilson's claim that his

counsel did not understand mitigation when he used the word "excuse"

to describe certain mitigating evidence does not set forth sufficient facts

to show that his trial counsel did not actually understand the concept of

mitigating evidence, nor did Wilson plead facts showing that he was

prejudiced by his counsel's alleged deficient performance. Thus, the

circuit court did not err when it dismissed this claim.

Accordingly, Wilson is due no relief on this claim.

I.B.2

Next, Wilson argues that the circuit court "misapplied the pleading

standards of Rule 32." (Wilson's brief, p. 68.) The totality of Wilson's

argument on appeal is as follows:

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"The trial court concluded that the claims were
insufficiently pled or, occasionally, meritless. This conclusion
contradicts Alabama law and misunderstands federal
constitutional precedent governing ineffective assistance of
counsel claims. As such, the trial court’s summary dismissal
must be vacated, with remand for a hearing on his claim that
trial counsel were ineffective in the penalty phase.

"As pointed out supra, the predicate for trial counsel's
decision to be considered reasonable is thorough
investigation. Clearly, that did not occur here. Trial counsel
found no hospital, school, or other records that would give the
jury a fuller picture of who Joey Wilson was. Further, trial
counsel did not even ask the witnesses he presented to give
the jury a real view of who Joey Wilson was, leaving the State
to make Mr. Wilson out to be a heinous monster who needed
to be removed from society through the death penalty. The
prejudice from this is obvious: the jury voted unanimously for
death. Had Mr. Wilson’s trial counsel put on any of the
evidence concerning his upbringing, there is a reasonable
probability that some jurors would have voted differently."

(Wilson's brief, pp. 68-69.)

Wilson's argument does not satisfy Rule 28(a)(10), Ala. R. App. P.,

which requires that an argument contain "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." Wilson cites no authority to support his

contention that the circuit court erred when it summarily dismissed

those claims mentioned in the above-quoted paragraphs. Although

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Wilson mentions in passing that the circuit court dismissed his claims as

insufficiently pleaded or as being without merit, Wilson makes no

argument detailing precisely how his claims were sufficiently pleaded or

were meritorious. Consequently, Wilson's argument does not satisfy

Rule 28(a)(10), Ala. R. App. P., and his argument that the circuit court

erred when it summarily dismissed these claims is deemed waived.

I.B.3

Finally, Wilson argues that the circuit court "improperly applied

the Rule 32 pleading standards in dismissing [his] penalty phase

ineffective assistance claims." (Wilson's brief, p. 69.) Specifically, Wilson

argues:

"When all of Mr. Wilson’s amended petitions are
examined, his claim that defense counsel failed to investigate
and present available mitigation evidence was sufficiently
pled. Mr. Wilson pleaded that defense counsel did not
investigate or present evidence, including that Mr. Wilson:

"a) was born jaundiced and with a collapsed
lung and needed oxygen;

"b) suffered from asthma and was on
numerous medications early in life;

"c) did fine in school, until he had to go to
summer school after fifth grade, repeated sixth
and seventh grades and, at that point, only passed
physical education and band class, causing him to

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consider himself a 'dummy' and 'a failure,' and led
to early experimentation and use of alcohol and
drugs; and

"d) heavily used drugs and alcohol at a young
age and continued that pattern after he quit school
and indeed, up to and including the day of the
crime in this case. (Supp.R. 135-138.)

"Defense counsel found none of these facts because they
did not do a proper mitigation investigation. The trial court’s
conclusion that trial counsel acted reasonably in not
presenting this evidence puts the cart before the horse. Trial
counsel's decisions can only be considered reasonable when
they are based on adequate investigation. As detailed in the
various Rule 32 petitions, there was no mitigation
investigation.

"Mr. Wilson's Rule 32 petition adequately pled sufficient
facts to require the trial court to hold a hearing on his claim
that defense counsel was ineffective for failing to investigate
and present mitigating evidence. This Court should vacate
the trial court’s order dismissing Mr. Wilson's penalty phase
ineffective assistance claims and remand for a hearing."

(Wilson's brief, pp. 69-70.) Wilson's argument is without merit.

In his second amended petition, Wilson alleged that his counsel

were ineffective because "they did not conduct the 'typical mitigation

presentation of background, upbringing, and/or substance abuse issues' "

and, if they had done so, "they would have discovered numerous

mitigating factors that neither the jury nor the trial court had the

opportunity to consider." (Supp. C. 133.)

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The circuit court, noting that Wilson's trial counsel did not

completely fail to conduct a mitigation investigation, summarily

dismissed the above-quoted 9 claims as follows:

"Citing Gladden's statement [in his affidavit] that he did
not conduct 'the typical mitigation presentation of
background, upbringing, and/or substance abuse issues,'
Wilson asserts that if 'Gladden had conducted a typical
mitigation investigation, they would have discovered
numerous mitigating factors that neither the jury nor the trial
court had the opportunity to consider.' Wilson erroneously
equates 'presentation' with 'investigation.' The two are not
synonymous. The record is clear on the 'presentation'
Gladden made. At the penalty phase of trial before the jury,
he called Wilson and his father to testify. At the sentencing
hearing before Judge Fay, he called two additional witnesses
to testify about their observations of and interactions with
Wilson."

(C. 457.) As to Wilson's claim about jaundice, a collapsed lung, and

asthma, the circuit court found that Wilson

"alleges that 'a pharmacological investigation' of his
medication 'could' reveal properties that 'could' adversely
affect the defendant. He does not specify what records or
witnesses Gladden should have located to testify in this

9In his petition, Wilson raised several other mitigating
circumstances that, he alleged, his counsel failed to investigate, but he
does not specifically raise those claims on appeal. It is well settled that
this Court will not address arguments that are not specifically listed and
argued in the brief on appeal. See Brownlee v. State, 666 So. 2d 91, 93
(Ala. Crim. App. 1995) ("We will not review issues not listed and argued
in brief.").

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regard. He does not allege any facts that would establish a
connection between these conditions and Wilson's conduct on
the evening in question, i.e., no facts to show how these would
have been considered 'mitigating' by the jury or by Judge Fay.
He pleads no facts to establish a reasonable probability that
the outcome would have been different had such evidence
been presented. Because this claim is insufficiently pleaded,
it is dismissed pursuant to Rule 32.6(b), Ala. R, Crim, P."

(C. 458-59.) As to Wilson's claim about his education and viewing himself

as a "dummy" and a "failure" the circuit court found:

"Wilson alleges that Gladden was ineffective for failing
to discover and explore evidence that Wilson considered
himself a "dummy" and a "failure." His petition fails to state
why his opinion about himself based on a lack of academic
achievement would have been mitigating, how he was
prejudiced by failure of the jury and Judge Fay to consider
this information. He pleads no facts to establish a reasonable
probability that the outcome would have been different if it
had been considered. Because this claim is insufficiently
pleaded, it is dismissed pursuant to Rule 32.6(b), Ala. R. Crim.
P."

(C. 459.) Finally, as to Wilson's claim about his substance abuse at a

young age and on the day of the crime, the circuit court found:

"Wilson alleges that Gladden was ineffective for not
discovering that he began drinking alcohol and using drugs at
an early age and continued using them until the time of this
crime. His petition fails to state what specific evidence or
testimony Gladden could have, or should have, presented to
prove he had a history of drug and alcohol abuse.
Significantly, he fails to allege how he was prejudiced because
this information was not presented to the jury or to Judge
Fay, and fails to plead facts showing a reasonable probability

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that he outcome would have been different had it been
presented. Because this claim is insufficiently pleaded, it is
dismissed pursuant to Rule 32.6(b), Ala. R, Crim. P.

"Wilson alleges that Gladden was ineffective for failing
to discover that Wilson drank a large amount of alcohol and
consumed a number of drugs on the day of the murders. He
alleges that his consumption of these substances caused him
to have a diminished capacity to appreciate the wrongfulness
of his conduct. He does not allege what evidence Gladden
could have, or should have, presented to the Jury or Judge
Fay. He does not allege how he would have extrapolated the
smell of alcohol on his breath to intoxication. He does not
allege what expert could have been used to connect drinking
alcohol and using drugs to lack of capacity to appreciate the
wrongfulness of his conduct. Assuming he was intoxicated, he
does not allege how he was prejudiced by not having evidence
introduced, or plead facts to establish a reasonable probability
that the outcome of his trial would have been different had
such evidence been presented. Because this claim is
insufficiently pleaded, it is dismissed pursuant to Rule 32.6(b)
Ala. R. Crim. P."

(C. 460.) We agree with the circuit court's judgment.

Indeed, in each of the above-mentioned allegations of ineffective

assistance of counsel, Wilson failed to plead sufficient facts to show that

he was entitled to relief. As the circuit court noted, Wilson failed to allege

what testimony he would have presented to establish these mitigating

circumstances, he failed to allege who his counsel should have called to

testify about those alleged mitigating circumstances, and he failed to

allege that these unnamed witnesses were willing and available to testify

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at his trial. Thus, the circuit court did not err when it found that Wilson's

claims were insufficiently pleaded.

Accordingly, Wilson is due no relief on this claim.

II. Brady Claim

Wilson argues that the circuit court erred when it dismissed his

claim asserted pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), because, he says, the State "violated its

constitutional obligations under Brady" when it "failed to provide a

wealth of exculpatory evidence to [him]." (Wilson's brief, p. 45.)

In his petition, Wilson alleged that the "State failed to comply with

its discovery obligations under Brady v. Maryland." (Supp. C. 57.)

Specifically, Wilson alleged the State "failed to provide" the following

"wealth of exculpatory evidence":

• "In a pre-trial hearing, the State disavowed any
intention to provide the defense with the work product
of their investigators (R. 42-44), investigative leads that
identify new witnesses (R. 70), or a transcript of events
before the grand jury (R. 22)."

• "Several written agreements and agreements were
reached with potential witnesses which were not turned
over by the prosecutors. (R. 61-88.)"

• "The defense did not receive portions of Officer Michael
Salmonsky's investigative report (R. 742-44), or

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complete accounts of evidence collected from state
witnesses Khristian Abbey (R. 944), Brian Harris (R.
1398-1400), or Teresa Mills. (R. 1417-18.)"

• "The state also provided late disclosure, and, in fact,
attempted to conceal, the written agreement that it
made with its informant Greg Tribble (R. 73) and its
contact with Travis Hatfield. (R. 83.)"

• "Information on other material witnesses and
informants who had exculpatory information regarding
Mr. Wilson's involvement was also not provided before
trial."

• "Numerous other documents and critical items of
exculpatory evidence were withheld by the state, which
actively obstructed discovery."

(Supp. C. 58-59.)

In his second amended petition, Wilson added to his Brady claim

alleging that, although the circuit court "ordered an open file policy," "the

State over and over again violated its disclosure requirements before the

trial started and even during the trial." (Supp. C. 147.) To support its

allegation, Wilson quoted part of a pretrial hearing on October 23, 1997,

during which the State revealed that Greg Tribble was a "paid informant

for the FBI," and that law enforcement wanted Tribble out of jail to

continue serving as an informant. (Supp. C. 148.) According to the State

at the hearing, Tribble shared a cell with Wilson and told the State that

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Wilson had admitted to committing the crimes. (Supp. C. 148.) Tribble

agreed to work as a drug informant and to testify for the State against

Wilson, and the State asked a judge to put Tribble on probation. (Supp.

C. 148-49.) The State said that, before the circuit court issued its

discovery order in Wilson's case, Tribble did not fulfill his obligations as

a drug informant and, thus, he was taken back to jail. According to

Wilson, the State expressly asserted at a pre-trial hearing that Tribble

"will not be a witness" in Wilson's case. (Supp. C. 149.)

Wilson also alleged that, during that same hearing, his trial counsel

accused the State of withholding information about a deal between the

State and Travis Hatfield for Hatfield's testimony against Wilson. (Supp.

C. 156.) The State, however, explained that it had spoken with Hatfield,

that Hatfield denied knowing anything about Wilson's case, and that

Hatfield "will not be a witness" in Wilson's case. (Supp. C. 156.)

Wilson also added in his second amended petition part of a pretrial

hearing that occurred on October 24, 1997, during which Wilson's trial

counsel told the circuit court that the State had provided him with

witness statements of two new witnesses -- namely, David Newby and

Brian Harris. (Supp. C. 160.) At the hearing, the State said that they

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had taken Newby's and Harris's statements the day before, transcribed

the statements, and then provided them to Wilson's counsel. (Supp. C.

161.) The State also told the circuit court that it intended to call both

Newby and Harris as witnesses in Wilson's trial. (Supp. C. 161.)

Next, Wilson added part of the reporter's transcript of his trial

counsel's cross-examination of Officer Michael Salmonsky, in which

Salmonsky testified that it appeared that the second page of his report

was missing, and that he had no recollection of what that page included.

(Supp. C. 161-62.) Wilson also added parts of the reporter's transcripts

from the testimonies of Khristian Ashby and Teresa Mills. (Supp. C. 162-

63.) During Ashby's testimony, Ashby testified that Wilson called her

from the Madison County jail, and, when she was asked about that

conversation, Wilson's trial counsel objected because he had not been

provided with that information. The circuit court sustained the objection

and did not allow Ashby to testify about the conversation she had with

Wilson. (Supp. C. 163.) During Mills's testimony, Mills testified that

Wilson had come into her house and that she told him to "[g]et the hell

out." (Supp. C. 164.) Wilson's trial counsel objected to Mills's testimony

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"under Ex parte Monk[, 557 So. 2d 832 (Ala. 1989),10] because this has

never been disclosed to us," asked that Mills's testimony be stricken, and

moved for a mistrial. (Supp. C. 164.) The circuit court denied Wilson's

motion for a mistrial, but it did instruct the jury to disregard Mills's "last

statement." (Supp. C. 164.)

In its response to his Brady claim, the State argued that Wilson's

claims about an alleged Brady violation that occurred at the pretrial

hearing on October 23, 1997, was precluded under Rule 32.2(a)(2) and

(4), Ala. R. Crim. P., because it was raised and addressed at trial and on

appeal (C. 53); that Wilson's claims about an alleged Brady violation at

the pretrial hearing on October 24, 1997, was precluded under Rule

32.2(a)(2) and (5), Ala. R. Crim. P., because it was raised and addressed

10In Ex parte Monk, 557 So. 2d 832 (Ala. 1989), the Alabama
Supreme Court reversed this Court's judgment granting a petition for a
writ of mandamus that challenged the circuit court's discovery orders in
two capital-murder cases that required an "open file policy in regard to
discovery," but maintained safeguards to protect the State's notes,
memoranda, and any other confidential materials by requiring the State
to present any documents withheld from the defendant to the court for
an in camera inspection of the documents. The Alabama Supreme Court
held that "capital cases are sufficiently different by their very nature, and
that the discovery order ..., in these two capital cases was within the
discretionary authority of the trial court." Ex parte Monk, 557 So. 2d at
836.
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at trial and could have been, but was not, raised on appeal (C. 53-54);

that Wilson's Brady claim as to Officer Salmonsky's report was precluded

under Rule 32.2(a)(3) and (4), Ala. R. Crim. P., because it could have been

addressed at trial but was not, and because it was raised and addressed

on appeal; that Wilson's Brady claim as to Ashby's statements was

precluded under Rule 32.2(a)(3) and (5), Ala. R. Crim. P., because it could

have been, but was not, raised at trial and on appeal; and that Wilson's

Brady claim as to Mills's statement was precluded under Rule 32.2(a)(2)

and (4), Ala. R. Crim. P., because it was raised and addressed at trial and

on appeal. (C. 51-58.)

The circuit court summarily dismissed each of Wilson's claims that

the State had violated Brady. (C. 392-99.)

On appeal, Wilson argues that the State violated Brady because it

"failed to provide a wealth of exculpatory evidence to Mr. Wilson"

(Wilson's brief, p. 45.) Specifically, Wilson argues that

"[i]n a pre-trial hearing the State disavowed any intention of
providing what it classified as the work product of its
investigators (R. 42-44), leads identifying new witnesses (R.
70), or a transcript of events before the grand jury. (R. 22.)
Several undisclosed written and verbal agreements were
reached with potential witnesses. (R. 61-88.) The defense did
not receive portions of Office Salmonsky's investigative report
(R. 742-44), or complete accounts of evidence collected from

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state witnesses Khristian Ashby (R. 944), Brian Harris (R.
1398-1400), and Teresa Mills (R. 1417-18). The State also
provided late disclosure of, and attempted to conceal, the
written agreement it had made with Greg Tribble (R. 73) and
contact with Travis Hatfield (R. 83). Information on the other
material witnesses who had exculpatory information
regarding Mr. Wilson's involvement in the crime was not
provided before trial. Instead, the State actively obstructed
discovery."

(Wilson's brief, pp. 45-46.) The circuit court correctly dismissed Wilson's

Brady claims.

We have held:

" 'To [establish] a Brady violation, a
defendant must show that " '(1) the prosecution
suppressed evidence; (2) the evidence was
favorable to the defendant; and (3) the evidence
was material to the issues at trial.' " Johnson v.
State, 612 So. 2d 1288, 1293 (Ala. Cr. App. 1992),
quoting Stano v. Dugger, 901 F.2d 898, 899 (11th
Cir. 1990), cert. denied, Stano v. Singletary, 516
U.S. 1122, 116 S. Ct. 932, 133 L. Ed. 2d 859 (1996).
See Smith v. State, 675 So. 2d 100 (Ala. Cr. App.
1995). " 'The evidence is material only if there is a
reasonable probability that, had the evidence been
disclosed to the defense, the result of the
proceeding would have been different. A
"reasonable probability" is a probability sufficient
to undermine confidence in the outcome.' "
Johnson, 612 So. 2d at 1293, quoting United States
v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383,
87 L. Ed. 2d 481 (1985).'

"Freeman v. State, 722 So. 2d 806, 810 (Ala. Crim. App. 1998).
However, ' "the rule of Brady applies only in situations which

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involve 'discovery after trial of information which had been
known to the prosecution but unknown to the defense.' " '
Bates v. State, 549 So. 2d 601, 609 (Ala. Crim. App. 1989)
(quoting Gardner v. State, 530 So. 2d 250, 256 (Ala. Crim.
App. 1987), quoting in turn United States v. Agurs, 427 U.S.
97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976)) (some
emphasis added)."

Bryant v. State, 181 So. 3d 1087, 1133-34 (Ala. Crim. App. 2011). What

is more, this Court has held that Brady claims are nonjurisdictional and,

thus, are subject to the grounds of preclusion set out in Rule 32.2, Ala. R.

Crim. P. See, e.g., Barbour v. State, 903 So. 2d 858, 868 ("A Brady claim

is subject to the procedural default grounds contained in Rule 32.2, Ala.

R. Crim. P.").

Here, most of Wilson's allegations about the State's having violated

Brady involved information that was made known to Wilson either before

his trial, such as the "deals" with Tribble and Hatfield and the statements

of Newby and Harris, or was made known to him during his trial, such

as Officer Salmonsky's report and the statements from Ashby and Mills.

So, as the State correctly argued in its response to these allegations,

Wilson's claims are precluded under Rule 32.2(a)(2),(3),(4), or (5), Ala. R.

Crim. P., because they either were raised and addressed at trial and on

appeal or because they could have been, but were not, raised at trial and

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on appeal. Thus, the circuit court did not err when it summarily

dismissed these claims. See, e.g., Bryant, 181 So. 3d at 1134 ("Based on

Bryant's admission in his first amended petition that his counsel were

aware of the two used condoms at the time of trial, and that counsel even

requested discovery of those condoms, it is clear that Bryant's Brady

claim was precluded by Rules 32.2(a)(3) and (a)(5) because it could have

been, but was not, raised and addressed at trial and on appeal.").

As to Wilson's other Brady claims (i.e., that "[i]nformation on other

material witnesses and informants who had exculpatory information

regarding Mr. Wilson's involvement was also not provided before trial"

and that "[n]umerous other documents and critical items of exculpatory

evidence were withheld by the state, which actively obstructed

discovery"), those claims were insufficiently pleaded.

Indeed, as to the "other material witnesses and informants," Wilson

did not identify by name any witness (other than the ones the State did

disclose as noted above) whom the State did not disclose to him. Nor did

Wilson plead any facts showing what exculpatory and material evidence

that these unnamed, undisclosed witnesses possessed. And, as the circuit

court correctly found:

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"Wilson conclude[d] his Brady claim by alleging that
'numerous other documents and critical items of exculpatory
evidence were withheld by the state, which actively
obstructed discovery.' This claim is dismissed because it is
not specifically pleaded. Wilson has not alleged facts showing
that the information referred to is exculpatory or material.
Not one piece of allegedly suppressed evidence is described
with requisite specificity."

(C. 398-99.) Wilson's bare allegations that the State violated Brady do

not satisfy the full-fact pleading requirement of Rule 32.3 and 32.6(b),

Ala. R. Crim. P. Thus, the circuit court did not err when it summarily

dismissed these claims.

Accordingly, Wilson is due no relief on his Brady claim.

III. State's Comment on Wilson's post-Miranda Silence

Wilson argues that the circuit court erred when it summarily

dismissed his claim that "the State commented repeatedly on [his]

exercise of his right to remain silent." (Wilson's brief, p. 47.) In his initial

petition, Wilson alleged that

"[f]rom the very outset of the trial, through the
evidentiary phase, and then at closing argument, the state
impressed upon the jury that Mr. Wilson did not a) give a
statement to the police and b) did not testify at the guilt phase
of the trial. The first reference came during the state's
opening argument. (R. 631.) Once the evidentiary phase of
the trial began, the state deliberately elicited testimony about
Mr. Wilson's decision to not give a statement to the police,
from two separate police witnesses. (R. 912, 915-916.)

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Describing and stressing Mr. Wilson's invocation of this Sixth
Amendment right to counsel was grossly improper and
prejudicial to Mr. Wilson."

(Supp. C. 71-72.) Wilson's claim, however, is nonjurisdictional and, thus,

it is subject to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim.

P. See, e.g., Marshall v. State, 182 So. 3d 573, 621 (Ala. Crim. App. 2014)

(holding that claims that a prosecutor made an improper argument or

engaged in misconduct are nonjurisdictional claims that are subject to

the grounds of preclusion set out in Rule 32.2). Because this Court in

Wilson's direct appeal rejected Wilson's argument that the State

improperly commented on his right to remain silent, the circuit court

correctly found that Wilson's claim is precluded under Rule 32.2(a)(4),

Ala. R. Crim. P., because it was raised and addressed by this Court in

Wilson's direct appeal.

What is more, Wilson's allegation that the State improperly

commented on the exercise of his right to remain silent during its opening

statement and during its presentation of evidence through two law-

enforcement witnesses, ignores that this Court has already examined the

complained-of comments and testimony and rejected the notion that

there exists any evidence indicating that Wilson ever invoked his right to

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remain silent and that the State's describing Wilson's statement to

someone in jail as "testimony" was, at most, a misstatement by the State

that could not have reasonably interpreted as a comment on Wilson's

failure to testify. Specifically, this Court held:

"From our review of the record, we conclude that the
prosecutor did not violate Doyle [ v. Ohio, 426 U.S. 610, 96 S.
Ct. 2240, 49 L. Ed. 2d 91 (1976)]. There is no indication in the
record that the appellant ever invoked his right to remain
silent during questioning by law enforcement officers. See
Hardy v. State, 804 So. 2d 247 (Ala. Cr. App. 1999). Rather,
the testimony indicates that he waived his right to remain
silent and agreed to talk to the officers. The comments and
testimony about which the appellant complains are not
improper references to his post-Miranda silence. Rather, they
are references to his waiver of his right to remain silent and
the statements he made after that waiver….

"The appellant also claims that the prosecutor
improperly drew the jury's attention to the fact that he would
not testify at trial. Specifically, he argues that the prosecutor
improperly characterized comments he made to a cell mate as
'what he testified to about a year ago in jail.' (Appellant's brief
at p. 49) (emphasis added). However, this was clearly simply
a misstatement by the prosecutor. There is no indication that
a reasonable juror would have interpreted the statement to be
a comment on the appellant's decision not to testify at trial.
Therefore, the appellant's argument is without merit."

Wilson, 777 So. 2d at 889-90. Wilson's allegation in his Rule 32 petition

characterizing the same comments and testimony as comments on his

right to remain silent is without merit.

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In short, the circuit court did not err when it dismissed Wilson's

claim because it is precluded under Rule 32.2(a)(4), Ala. R. Crim. P., and

because it is without merit.

Accordingly, Wilson is due no relief on this claim.

IV. Prosecutorial Misconduct

Finally, Wilson argues that the circuit court erred when it

summarily dismissed his claim that his "trial was infected at every stage

by unobjected-to prosecutorial misconduct." (Wilson's brief, p. 49.) But

"[i]t is well settled that claims of prosecutorial misconduct are

nonjurisdictional and subject to the grounds of preclusion set forth in

Rule 32.2, Ala. R. Crim. P. See Sunday v. State, 857 So. 2d 166, 169 (Ala.

Crim. App. 2002) ('[Sunday's prosecutorial-misconduct claim] is

precluded because it could have been, but was not, raised at trial or on

appeal.')." Marshall, 182 So. 3d at 621. Because these claims were raised

and addressed in Wilson's direct appeal, see Wilson, 777 So. 2d at 893-

910, the circuit court did not err when it found that Wilson's

prosecutorial-misconduct claims were precluded under Rule 32.2(a)(4),

Ala. R. Crim. P.

Accordingly, Wilson is due no relief on this claim.

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Conclusion

Based on these reasons, 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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