Jordaan Stanly Creque v. State of Alabama

• Court: Court of Criminal Appeals of Alabama
• Decided: June 26, 2026
• Docket: CR-2023-0654
• Status: Published

Opinion

Rel: June 26, 2026

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

Alabama Court of Criminal Appeals OCTOBER TERM, 2025-2026 _________________________

CR-2023-0654 _________________________

Jordaan Stanly Creque

v.

State of Alabama

Appeal from Morgan Circuit Court (CC-11-844.60)

COLE, Judge.

Jordaan Stanly Creque, an inmate on Alabama's death row, appeals

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

Crim. P., petition for postconviction relief. CR-2023-0654

Facts and Procedural History

Creque, who was employed at Krystal fast-food restaurant, was

arrested on August 24, 2011, after confessing to shooting the Krystal

manager, Jeffrey Mark Graff, and a coworker, Jessie Jose Aguilar, during

a robbery of the restaurant earlier that morning. Creque told police that

he planned and committed the robbery with his two friends, Cassandra

Eldred, who also worked at Krystal, and Ezekiel Gholston. On August

26, 2011, Creque was appointed two trial counsel. (C. 8.) 1 On November

16, 2011, a Morgan County grand jury returned an indictment charging

Creque with three counts of capital murder for the intentional murders

of Graff and Aguilar, which were made capital because they were

committed during the course of a robbery of both individuals and because

the two victims were murdered by one act or pursuant to one scheme or

course of conduct, violations of §§ 13A-5-40(a)(2) and (10), Ala. Code 1975,

respectively. (C. 8-9.) Creque's trial commenced on September 30, 2013.

On October 11, 2013, the jury found Creque guilty on all three counts of

capital murder charged in the indictment. On October 14, 2013, after the

1"C" refers to the clerk's record in this case. "TC," "TR," and "STR"

refer to, respectively, the clerk's record, the reporter's transcript, and the supplemental record from Creque's trial. 2 CR-2023-0654

penalty phase, the jury recommended that Creque be sentenced to death

by a vote of 11 to 1. On January 15, 2014, the trial court sentenced

Creque to death in accordance with the jury's recommendation. This

Court affirmed Creque's convictions and sentence on direct appeal on

February 9, 2018. Both the Alabama Supreme Court and the United

States Supreme Court denied Creque's petitions for a writ of certiorari.

On September 21, 2018, the certificate of judgment was entered.

Creque timely filed a Rule 32 petition on September 12, 2019, and

his filing fee was paid the next day. On July 23, 2020, counsel entered

their appearance on behalf of Creque. On November 24, 2020, Creque

filed an "amended" Rule 32 petition, which counsel stated was not a true

"amendment" but was merely a resubmission of Creque's original petition

in "a form that complies with the procedural requirements of Rule 32."

(C. 169.) On November 1, 2021, Creque filed an "Amended Petition."2 On

June 10, 2022, the State filed an answer and a motion for summary

dismissal of Creque's petition. (C. 581-683.) Creque filed a reply to the

2The State refers to this November 1, 2021, petition as the "second

amended" Rule 32 petition, but this Court will simply refer to Creque's "Amended Petition" as the "petition" because, as Creque recognizes, it is the "operative pleading." 3 CR-2023-0654

State's request for summary dismissal. (C. 687-761.) The circuit court

subsequently issued an order summarily dismissing Creque's amended

Rule 32 petition, finding that Creque's claims were insufficiently pleaded,

without merit, or both. (C. 764-85.) This appeal follows.

The facts of Creque's crimes were set forth in this Court's opinion

affirming Creque's convictions and sentences on direct appeal:

"Creque admitted at trial that he and two friends, Cassandra Eldred and Ezekiel Gholston, made a plan to steal money from the Krystal fast-food restaurant where Creque and Eldred were employed. Creque purchased a 9mm handgun and ammunition on August 23, 2011, the day before the murders. In the early morning hours of August 24, 2011, Eldred drove the two men to the restaurant. Creque had been scheduled to work the overnight shift but had failed to do so. Two employees were working at the restaurant that morning -- Graff, the manager, and Aguilar. Creque got Graff's attention by knocking on the drive-thru window, and Graff opened the side door to let him in. Creque and Gholston rushed into the restaurant; Gholston was armed with Creque's 9mm gun. They gathered money from the cash registers, and they took the money from the store's safe, which Creque had forced Graff to open. Graff attempted to diffuse the situation and told Creque and Gholston that they could leave and he would wait 10 minutes before he called the police. Creque and Gholston planned to force Graff and Aguilar into the restaurant's cooler. Graff asked if he could get a jacket for Aguilar, and he was allowed to do so.

"Creque gave a statement to the police on the morning of the murders, and he admitted that he had intentionally shot and killed both men. At trial Creque admitted that he shot Graff, but claimed it was unintentional and that he had

4 CR-2023-0654

fired the shot while wrestling over the cooler door with Graff, who was pulling on the cooler door in an attempt to keep it closed. Creque shot Graff one time, in the neck; the bullet pierced his spinal column, and he was paralyzed immediately. Aguilar was shot four times. Creque alleged at trial that after he shot Graff, Gholston took the gun from him and shot Aguilar. Both men died at the scene. Eldred drove them from the scene, and the three divided the money.

"Creque went to the apartment he shared with his girlfriend, Brittany Orr. Creque put his share of the stolen money in a stereo speaker, and he told her that someone had been shot at the restaurant. He was not injured when he arrived at the apartment but, while at the apartment, with the intention that it would appear that he had been assaulted and forced to take part in the crimes, he cut himself with a razor on his arms and chest and had [Brittany] hit him on the head and chest with a can of peaches. [Brittany] and Creque went to the emergency room. A nurse contacted the police after Creque told medical personnel that he had been assaulted by men who had shot one or more employees at a fast-food restaurant.

"Creque was interviewed at the hospital by police officers as a possible witness to the shootings at the restaurant. He initially told the lead investigator, [Det.] Rick Archer, that he had been riding around with 'Taurus,' 'Quincy,' and 'Wodie,' and that he had been showing them the gun he had purchased earlier that day. He said that they had taken his gun, tortured him, and had forced him to take part in their plan to steal money from the restaurant. However, when the police received additional information from officers investigating the crime, including the fact that Gholston had been at the restaurant, [Det.] Archer presented that information to Creque and, [Det.] Archer said, Creque's story 'evolved' to account for that information. In Creque's final version of the events, he said that he, Gholston, and Eldred had planned the robbery and that Eldred drove them to and

5 CR-2023-0654

from the restaurant. He described the crime in detail and admitted that he intentionally shot Graff and Aguilar.

"The police recovered cash from Eldred's residence and from the apartment Creque shared with [Brittany]. Gholston led the police to a lake where he had disposed of the gun Creque had purchased, and forensic testing established that the recovered gun was the one from which the fatal shots were fired.

"The trial court instructed the jury on the three counts of capital murder charged in the indictment. The court also instructed the jury on felony-murder and robbery as lesser- included offenses. The jury found Creque guilty of the three counts of capital murder as charged in the indictment.

"At the penalty phase, Creque presented a variety of evidence offered as support for the imposition of a sentence of life imprisonment without the possibility of parole, including: testimony about his chaotic upbringing that included physical and emotional abuse; evidence about his learning disabilities, educational deficiencies, and the lack of appropriate parental role models; evidence of his chronic abuse of drugs and alcohol; and evidence that he had sustained numerous concussions and other physical injuries during his childhood. The jury recommended that the trial court sentence Creque to death, and the trial court imposed the death sentence."

Creque v. State, 272 So. 3d 659, 673-74 (Ala. Crim. App. 2018) (footnote

omitted).

6 CR-2023-0654

Standard of Review

In Belcher v. State, [Ms. CR-2023-0206, June 26, 2026] ___ So. 3d

___ (Ala. Crim. App. 2026), this Court set forth the standard that we use

to review a postconviction petition as follows:

"It is well settled that a circuit court may summarily dismiss a postconviction 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).

" ' " [W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.' " Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992)). However, "when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). "The sufficiency of pleadings in a Rule 32 petition is a question of law" and is reviewed

7 CR-2023-0654

" 'de novo.' " Ex parte Beckworth, 190 So. 3d 571, 573 (Ala. 2013) (quoting Ex parte Lamb, 113 So. 3d 686, 689 (Ala. 2011)). Moreover, when a trial court makes its judgment "based on the cold trial record," we apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 352 (Ala. 2012).'

"Harris v. State, 365 So. 3d 1075, 1089 (Ala. Crim. App. 2021).

"Some of [Creque's] claims were summarily dismissed on the ground that they were insufficiently pleaded.

" 'Rule 32.3, Ala. R. Crim. P., states that "[t]he petitioner shall have the burden of pleading ... the facts necessary to entitle the petitioner to relief." Rule 32.6(b), Ala. R. Crim. P., states that "[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings." As this Court noted in Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003):

" ' " '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

8 CR-2023-0654

the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to present evidence proving those alleged facts."

" '913 So. 2d at 1125.

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

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

" ' "Although postconviction proceedings are civil in nature, they are governed by the Alabama Rules of Criminal Procedure. See Rule 32.4, Ala. R. Crim. P. The 'notice pleading' requirements relative to civil cases do not apply to Rule 32 proceedings. 'Unlike the general requirements related to civil cases, the pleading requirements for postconviction petitions are more stringent....' Daniel

9 CR-2023-0654

v. State, 86 So. 3d 405, 410-11 (Ala. Crim. App. 2011). Rule 32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in the petition if the petition is to survive summary dismissal. See Daniel, supra. Thus, to satisfy the requirements for pleading as they relate to postconviction petitions, Washington was required to plead full facts to support each individual claim."

" 'Washington v. State, 95 So. 3d 26, 59 (Ala. Crim. App. 2012). "The pleading requirements of Rule 32 apply equally to capital cases in which the death penalty has been imposed." Taylor v. State, 157 So. 3d 131, 140 (Ala. Crim. App. 2010).'

"Harris, 365 So. 3d at 1089-90."

___ So. 3d at ___. In addition, "[s]ummary disposition is also appropriate

when the petition is obviously without merit or where the record directly

refutes a Rule 32 petitioner's claim." Lanier v. State, 296 So. 3d 341, 343

(Ala. Crim. App. 2019).

Moreover, " ' [t]he procedural bars of Rule 32 apply with equal force

to all cases, including those in which the death penalty has been

imposed.' " Brownlee v. State, 666 So. 2d 91, 93 (Ala.Crim.App.1995)

(citation omitted).

"Finally, ' [w]ith certain exceptions not applicable here, "this Court may affirm the judgment of the circuit court for any reason, even if it is not for the reason stated by the circuit 10 CR-2023-0654

court." ' Harris [v. State], 365 So. 3d [1075,] 1091 [(Ala. Crim. App. 2021)] (quoting Acra v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012))."

Belcher, ___ So. 3d at ___.

Analysis

Creque asserts on appeal that the circuit court erred by summarily

dismissing the following five general claims in his petition: that trial

counsel were ineffective during the guilt phase for failing to "effectively

marshal evidence of [his] intoxication and mental state," that trial

counsel ineffectively "handle[d] jury selection and juror misconduct," that

trial counsel provided ineffective assistance during the penalty and

sentencing phases of his trial, that trial counsel were constitutionally

ineffective "in myriad other ways," and that the circuit court committed

numerous legal errors in summarily dismissing his petition. (Creque's

brief, pp. 25, 46, 59, 88, 91.) None of these arguments entitle Creque to

relief.

Before addressing Creque's claims on appeal, we note that the

majority of his arguments on appeal concern claims that the circuit court

erroneously dismissed his multiple ineffective-assistance-of-counsel

11 CR-2023-0654

claims without an evidentiary hearing. In considering Creque's

ineffective-assistance-of-counsel claims, we apply the following well-

settled legal principles:

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

" ' " '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

12 CR-2023-0654

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.

" ' " '[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, [466 U.S. at 693,] 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. …'

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

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" ' "An appellant is not entitled to 'perfect representation.' Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). '[I]n considering claims of ineffective assistance of counsel, "we address not what is prudent or appropriate, but only what is constitutionally compelled." ' Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)."

" 'Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App. 2013). ...

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

Belcher, ___ So. 3d at ___ (quoting Marshall v. State, 182 So. 3d 573, 582-

83 (Ala. Crim. App. 2014)).

"In determining whether a petitioner was prejudiced by any deficient performance,

" ' " 'a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' … In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence." ' "

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Belcher, ___ So. 3d at ___ (quoting Gaddy v. State, 952 So. 2d 1149, 1171

(Ala. Crim. App. 2006), quoting in turn Wiggins v. Smith, 539 U.S. 510,

534 (2003), quoting in turn Strickland v. Washington, 466 U.S. 668, 694

(1984)).

With these principles in mind, we review Creque's arguments on

appeal.

I. Ineffective Assistance Regarding Intoxication/Mental State

Creque first contends, as he did in his petition, that trial counsel

rendered ineffective assistance by failing to "effectively" present evidence

of his intoxication and mental state at the time of his confession and at

the time of the offenses. More specifically, Creque argues that his trial

counsel failed to "effectively" challenge the admissibility of his confession,

failed to "adequately" argue that the confession should not be believed,

and failed to argue that he lacked the specific intent to kill based on his

intoxication and mental state at the time of the offenses.

A. Motion to Suppress

Creque first argues that trial counsel provided constitutionally

ineffective assistance in moving to suppress his statements.

15 CR-2023-0654

This Court addressed Creque's preserved argument on direct

appeal that "the trial court erred when it denied his motion to suppress

his statements." Creque, 272 So. 3d at 675. After a thorough analysis,

this Court rejected Creque's underlying, substantive claim that his

motion to suppress was erroneously denied. Id. at 675-88. Creque argued

at trial and on direct appeal that the statements he provided at the

hospital were inadmissible because he was not Mirandized3 and "that the

post-waiver statement was involuntary because, he says, he was under

the influence of Ativan and the drugs and alcohol he had ingested before

he went to the hospital and he was coerced." Id. at 675, 679. Creque also

argued that "he was 'drowsy and incapacitated' at the police station when

[Det.] Archer went over his statement with him." Id. at 679. This Court

rejected each of Creque's arguments. We held that "the trial court here

correctly determined that Creque was not in custody when he spoke to

[Det.] Pinion, and that [Det.] Pinion was not required to advise Creque of

his Miranda rights before questioning him about what had happened."

Id. at 679. We then rejected Creque's contentions that his statements

3Miranda v. Arizona, 384 U.S. 436 (1966).

16 CR-2023-0654

were involuntary based on his use of drugs and alcohol and the shot of

Ativan he received at the hospital. As this Court explained:

"Creque … was not so impaired as to make him unconscious of the meaning of his words so as to render his Miranda waiver or his statement involuntary. To the contrary, it is clear from the testimony and from Creque's own statement that he was so alert and so aware of the circumstances and the meaning of his words that he adjusted his version of events to respond to [Det.] Archer's questions and comments about information from the investigation that conflicted with what Creque had initially told [Det.] Archer. Furthermore, Creque did not request that [Det.] Archer stop the review of his written statement because he was tired and incapable of continuing, and he engaged in further discussion with [Det.] Archer about certain details of the statement and wrote additional information on the statement at the conclusion of the review of the written statement."

Id. at 684. This Court also rejected Creque's contention on direct appeal

that his statement was involuntary because of the combined effects of

alcohol, drugs, and sleep deprivation. "Having reviewed the videotape,

this Court agree[d] with the trial court's determination that Creque was

obviously tired and sleepy, but not to the degree that rendered his

statement involuntary." Id. at 685.

In sum, we held that,

"[c]onsidering all of Creque's arguments as to the voluntariness of his Miranda waivers and statements in light of the totality of the circumstances, … the trial court did not

17 CR-2023-0654

err in ruling that Creque's statements were voluntary, so they were properly admitted into evidence."

Id. at 686.

Creque's postconviction claim that trial counsel were ineffective in

moving to suppress his statements was likewise properly dismissed. See

Lee v. State, 44 So. 3d 1145, 1173 (Ala. Crim. App. 2009) ("Because the

substantive claim underlying the claim of ineffective assistance of

counsel has no merit, counsel could not be ineffective" based on his

alleged deficient presentation of this motion.). Although Creque's

petition asserts that other experts would have been more effective in

showing how Creque's statements to authorities may have been

influenced by his consumption of alcohol and different controlled

substances, he failed to sufficiently plead information that his

statements would have been inadmissible considering the circuit court's

review of other evidence already presented, including its review of

Creque's confession itself. Moreover, because the motion to suppress was

properly denied, the timing of the meritless motion could not result in

constitutionally ineffective assistance. In short, Creque pleaded no facts

that would even suggest a reasonable probability of prejudice -- that

either the trial court's or this Court's merits analysis would have been

18 CR-2023-0654

different had the trial court been given more time to consider the motion.

See, e.g., Wilson v. State, [Ms. CR-21-0109, Aug. 22, 2025] ___ So. 3d ___,

___ (Ala. Crim. App. 2025) ("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."). Likewise, although the State's mentioning Creque's

confession in opening statements may have been prejudicial had the

confession been held to be inadmissible, no prejudice could have resulted

because the confession was properly admitted at trial. Creque's

allegations were insufficiently pleaded because he pleaded no facts that,

if true, show a reasonable probability that, but for counsel's alleged

untimeliness, the result of Creque's trial would have been different,

particularly because the underlying substantive claims were without

merit.

To the extent that Creque contends on appeal that "[i]t violates the

Sixth Amendment for counsel to wait until the middle of trial to come up

with a defense theory" (Creque's brief, p. 34), that claim is deemed waived

because it does not satisfy the requirements of Rule 28(a)(10), Ala. R.

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App. P. See, e.g., Woodward v. State, 276 So. 3d 713, 746 (Ala. Crim.

App. 2018) (holding that Woodward's argument was waived because he

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

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

Furthermore, to the extent that Creque argues that trial counsel could

not prepare for trial until they knew that Creque's confession would be

admitted into evidence, it is clear that counsel had to prepare for trial

with the assumption that the confession would be admitted into evidence

for the jury's consideration at least until a suppression motion was filed

and the trial court made a ruling. Thus, the trial court's mid-trial ruling

that the confession was admissible could not have changed counsel's

strategy that was necessarily in place at least until the suppression

motion was filed. Although Creque cites two cases from other circuits,

Creque does not cite to the trial record or make any argument on appeal

in support of this claim and what alternative theory he believed counsel

failed to make, much less explain how counsel's failure to pursue such a

theory prejudiced him. Later, in providing a laundry list of the additional

"myriad other ways" that counsel were ineffective, Creque states that his

counsel should have "present[ed] an alternative theory that Gholston was

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the real shooter of both victims." (Creque's brief, p. 89.) However, again,

Creque offers no argument but merely cites allegations in his petition

that Gholston allegedly "had far more motive to commit a robbery" and

that a witness, Justin Creque, could have testified that Gholston

suggested to Creque that they should "hit a lick." (C. 426, 454.) Neither

allegation, however, supports a theory that Gholston was the real

shooter, especially in light of Creque's pretrial (and properly admitted)

confession that he shot both victims, as well as his trial testimony that

he shot Graff.

Moreover, the circuit court properly dismissed this claim because it

was both insufficiently pleaded and without merit. Because the evidence

against Creque -- Creque's detailed confessions and ample corroborating

evidence -- was overwhelming, there was no reasonable probability that

a defense theory that contradicted Creque's confessions and argued that

Gholston was the shooter of both victims would have resulted in a

different outcome.

The defense "theory of the case at trial was that [Creque] shot only

Graff and that he did so accidentally." Creque, 272 So. 3d at 698. That

theory could be reconciled with Creque's admissible confession, but the

21 CR-2023-0654

theory proffered in Creque's Rule 32 petition and on appeal cannot. The

defense theory pursued at trial was not "unreasonable," particularly

given Creque's own admissions. Creque's alternative postconviction

theory that Gholston was responsible directly contradicted Creque’s

confession, and, thus, counsel could not be ineffective for failing to

present a theory contradicted by Creque's own confession, which this

Court held was properly admitted on direct appeal and which was amply

corroborated at trial. Even at trial, Creque acknowledged going to

Tucker’s Gas Station and Pawn Shop to buy a pistol on August 23, 2011.

Creque was convinced to join Gholston in the robbery because they had a

"greater chance" with Creque’s gun and because Creque "knew the ins

and outs" of Krystal. (TR. 2280-81.) Creque testified that he was

"convinced" only because he was going to merely "stand at the door and

watch guard." (TR. 2281.) However, Creque admitted that he loaded the

gun with bullets. (TR. 2349.) Creque acknowledged shooting Graff,

although he claimed that it was an accident that occurred when Graff

was trying to get out of the cooler. (TR. 2293-94.) However, Creque also

testified that Graff had "grabbed [Aguilar] a jacket" on their way to the

cooler, indicating that Graff was complying with going in it and not going

22 CR-2023-0654

to try to prevent going in. Creque and Gholston ran from the scene after

Aguilar was shot and then split the money between themselves and

Eldred. (TR. 2293-96.) Creque admitted throwing his clothes and shoes

and bandana in a dumpster. (TR. 2303.) Creque admitted he "c[a]me up

with a story that would pretty much cover what took place." (TR. 2306.)

Brittany Orr drove him to the hospital, and he indeed "told [the nurses]

that [he] had been beaten up and knew something about [what had

happened] at Krystal." (TR. 2307.) Creque said that his initial story

involved Taurus and "Quincy and … [his] being forced to commit a

robbery." (TR. 2309.) He also admitted that, before that story, he had

told Eldred and Brittany Orr that he had helped Gholston with the

robbery, but that Gholston had shot two people. Creque hid money in the

stereo speaker in Megan Orr's apartment, where he lived. Creque

admittedly cut himself before going to the hospital to corroborate the

story that he was forced to participate in the robbery. (TR. 2297, 2309,

2305.) Brittany also testified that she helped injure him to corroborate

his "story." Moreover, trial counsel bolstered Creque's trial testimony

with the testimony of "Janice Johnson, a self-employed crime-scene

analyst who had experience in crime-scene reconstruction." Creque, 272

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So. 3d at 698. On direct appeal, this Court recounted how Johnson's

testimony supported Creque's accidental-shooting theory and how trial

counsel relied upon it in the guilt-phase closing argument. Id. at 698-

700.

In sum, "because the chosen theory of defense [accidental shooting

of Graff] was reasonable, 'it is immaterial that some other reasonable

courses of defense … existed.' " Brooks v. State, 929 So. 2d 491, 503 (Ala.

Crim. App. 2005) (quoting Chandler v. United States, 218 F.3d 1305,

1316 n.16 (11th Cir. 2000)). Moreover, " 'the mere existence of a potential

alternative defense theory is not enough to establish ineffective

assistance based on counsel's failure to present that theory.' " Hunt v.

State, 940 So. 2d 1041, 1067 (Ala. Crim. App. 2005) (quoting Rosario-

Dominguez v. United States, 353 F. Supp. 2d 500, 513 (S.D.N.Y. 2005)).

Creque also failed to plead facts to show that additional evidence of

Creque's alcohol and drug use leading up to the crimes would have

changed the result, particularly considering the trial court's finding at

trial and this Court's finding on appeal that Creque's statements were

admissible. The trial court considered the audio and video recordings of

Creque's statements to police and found "no indication … that Mr. Creque

24 CR-2023-0654

was under the influence of any kind of drugs legal or otherwise" (TR.

2065), and, after reviewing those recordings, this Court agreed with the

trial court on direct appeal. The trial testimony was that, although

Creque was "tired" and "sleepy," none of those circumstances "impact[ed]

his ability to make coherent statements." (TR. 2065-66.) In short, "[i]f

the court cannot determine whether the petitioner is entitled to relief

after considering all of the factual assertions to be true, then the

petitioner has failed to meet his burden of pleading pursuant to Rule

32.6(b), Ala. R. Crim. P." Lee v. State, 44 So. 3d 1145, 1156 (Ala. Crim.

App. 2009).

Creque also argues that trial counsel "failed to effectively marshal

the evidence supporting suppression of [his] statement." (Creque's brief,

p. 35.) More specifically, Creque contends that counsel should have

elicited lay witnesses to testify about his alcohol and drug use in the

hours before the murders. Creque twice contends on appeal that trial

counsel was ineffective for failing to "present evidence from lay witnesses

about [his] mental state" and for failing to "elicit any evidence at the

suppression hearing or trial from the multiple available lay witnesses

who observed [him] in the hours leading up to the offense and could have

25 CR-2023-0654

testified about just how intoxicated and sleep-deprived [he] was."

(Creque's brief, pp. 35-36.) Creque, however, makes no arguments on

appeal regarding this contention but merely cites his petition and alleges

in a footnote that Megan Orr, Brittany Orr, Eldred, Gholston, and Taurus

Pickett "could have" testified. Bare contentions without argument do not

satisfy the requirements of Rule 28(a)(10), Ala. R. App. P., and are, thus,

waived. Moreover, this contention was insufficiently pleaded. Although

Creque identified who "could have" been called to testify at his trial, he

never alleged that Pickett or Eldred and Gholston (who were at the time

awaiting their own trials for their participation in the same offenses)

would have testified. Likewise, Creque never contended what any of the

witnesses would have testified regarding any specific amounts of drugs

and alcohol he consumed and when he consumed the drugs and alcohol,

much less that they would have said he was intoxicated (or appeared to

be) around the time of the crimes. Moreover, both Brittany and Megan

testified at Creque's trial about his use of substances, but neither

testified that Creque was or appeared to be intoxicated at or around the

time of the crimes; nor did their testimony even suggest that Creque

26 CR-2023-0654

would have been intoxicated at the time of the crimes. (TR. 1395-1408;

TR. 1948.)

Moreover, additional evidence of Creque's alcohol and drug use

would have been cumulative, and counsel could not have rendered

ineffective assistance by failing to present additional, cumulative

testimony regarding his alcohol and drug use, sleepiness, and the Ativan

injection he received at the hospital while being treated for his self-

inflicted wounds. See, e.g., McWhorter v. State, 142 So. 3d 1195, 1237

(Ala. Crim. App. 2011) (noting that "additional evidence ... would have

been cumulative to evidence presented by trial counsel or would have

been inconsistent with evidence presented to support trial counsel's

reasonable strategy"). Creque testified that the last time he smoked

marijuana or anything else before going to the Krystal restaurant was

around 12:45 a.m. but that he smoked marijuana and spice and drank a

couple of beers at Eldred's place after the robbery and murders and before

he went to the hospital. (TR. 2058, 2060.) In his statement to police,

Creque talked about "smoking weed" as he and his accomplices planned

the Krystal robbery. (TR. 1990.) Det. Archer acknowledged that Creque

appeared "drowsy" or "tired" at the police station. (TR. 1985.) In

27 CR-2023-0654

addition, Brittany, Creque's girlfriend at the time, with whom he was

living, testified that, around the time of the murders, Creque smoked "a

lot of marijuana," often every day" and that he smoked spice "[m]aybe

every other day." (TR. 1946.) Creque also consumed alcohol during this

time. In addition, Brittany testified that during this time "he wasn't

getting much sleep." (TR. 1947-48.) Likewise, Creque later testified

before the jury that, around the time of the robbery and murders and on

the day of, he had been using both marijuana and spice, a synthetic

marijuana," "between six and seven times a day." (TR. 2257-59.) On

August 23 and 24, 2011, he was smoking "between six and eight" Spice

cigarettes. (TR. 2260.) Creque also testified that he drank an entire case

of 24 beers between August 23 and August 24, 2011. (TR. 2260-61.)

Creque said that he also had "a couple of shots" of vodka. (TR. 2262.) In

addition, Creque said that, on August 23, he "consumed powder cocaine"

and took "two Klonopins and … a Xanax bar," as well as some Lortab

pills. (R. 2262-64.) Creque further said that, during this period, he would

"[t]ypically … get no more than an hour, hour and a half worth of sleep if

that" each day. (TR. 2266.) According to Creque, he could not remember

going to the hospital on August 24, 2011. (TR. 2268.) And, he could not

28 CR-2023-0654

recall much that occurred at the hospital or police department. (TR.

2310-15.)

Finally, Creque contends that "counsel's biggest gaffe was hiring"

Dr. Jack Kalin, whom he contends was "an unqualified" and

"inadequately prepared" expert. Creque then alleges that Dr. Kalin's

testimony "arguably harmed [him]." (Creque's brief, p. 38 (emphasis

added).) Creque's contention is clearly speculative, and "[s]peculation is

not sufficient to satisfy a [postconviction] petitioner's burden of

pleading." Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App.

2013). In short, "[t]he likelihood of a different result must be substantial,

not just conceivable." Harrington v. Ricter, 562 U.S. 86, 112 (2011).

In addition, the record refutes Creque's contentions. Dr. Kalin was

a qualified toxicologist -- a forensic toxicologist for nearly 22 years and

the "chief of toxicology for the Department of Forensic Sciences" for 9 of

those years. (TR. 196, 2352.) Moreover, Dr. Kalin testified that he was

"primarily interested in the effects that … substances have on the people

who ingest them" and "all kinds of performance issues." (TR. 2353

(emphasis added).) It is well settled that " ' "[d]efense counsel is entitled

to rely on the evaluations conducted by qualified … experts, even if, in

29 CR-2023-0654

retrospect, those evaluations may not have been as complete as others

may desire." ' " White v. State, 343 So. 3d 1150, 1176 (Ala. Crim. App.

2019) (quoting McMillan v. State, 258 So. 3d 1154, 1177 (Ala. Crim. App.

2017), quoting in turn Darling v. State, 966 So. 2d 366, 377 (Fla. 2007)).

Thus, even if another expert had testified on Creque's behalf at his trial

(specifically, Dr. Gaylord Lopez, who Creque pleaded would have testified

"more" about the effects of the interaction of the various substances

Creque said he had ingested before the crimes), Creque pleaded no facts

to show how counsel's reliance on Dr. Kalin's assessments rendered

counsel's performance deficient, especially considering the record on

appeal, the rulings of the trial court that Creque did not appear to be

intoxicated or impaired at the time he made his pretrial statements to

law enforcement, and the holding of this Court on direct appeal that, after

reviewing the audio and video recordings of those statements, the trial

court properly admitted Creque's statements. Moreover, as for Creque's

arguments that Dr. Lopez was better qualified than Dr. Kalin and

"available to testify at the time [of Creque's trial]" (Creque's brief, p. 37),

the United States Supreme Court has made clear "that the inadequate

assistance of counsel … does not consist of the hiring of an expert who,

30 CR-2023-0654

though qualified, was not qualified enough." Hinton v. Alabama, 571

U.S. 263, 274-75 (2014) (emphasis added). "The selection of an expert

witness is a paradigmatic example of the type of 'strategic choic[e]' that,

when made 'after thorough investigation of [the] law and facts,' is

'virtually unchallengeable.' " Id. at 275 (quoting Strickland, 466 U.S. at

690).

In addition, ample evidence regarding Creque's drug and alcohol

use and sleep deprivation was presented at trial, and, contrary to

Creque's postconviction contentions, Dr. Kalin testified that Creque was

anxious and hyperventilating at the beginning of the audio recording and

that he had received Ativan and "felt weird" and was experiencing a

"numbing" sensation. (TR. 204.) On the video recording from the police

department, Dr. Kalin did not observe the anxiousness, only sleepiness,

and he said that Creque was "nodding off repeatedly." (TR. 205, 222.)

Nonetheless, Dr. Kalin testified that Creque was "fully cooperative,"

although he appeared to be "sleepy," which could be an effect of Ativan.

(TR. 206.) Dr. Kalin also said that Ativan could cause "memory loss."

(TR. 207.) Dr. Kalin then noted that the effects would be less for someone

taking that class of drugs regularly. Dr. Kalin even opined that if Creque

31 CR-2023-0654

had consumed other drugs at the time, that would also impact his

behavior. (TR. 218, 223.) Dr. Kalin testified that one who had taken

Ativan would "probably … not [be] on [his] best form." (TR. 2362.) Dr.

Kalin testified that marijuana "can cause hallucinations" and make one

"lose track of time and space." (TR. 2363.) Dr. Kalin testified that cocaine

and synthetic drugs like Spice can cause anxiety, that drugs like Ativan

cause sleepiness, and that "synthetic marijuana" can make someone

"very excitable, very unpredictable." (TR. 2358-60, 2364.) Dr. Kalin also

opined that the combined effects would be greater than the effect of just

one drug and that, "[i]f you had Xanax, alcohol, and Klonopin, you would

probably have a very sleepy subject." (TR. 2370.) However, Dr. Kalin

testified a sleepy person would not have appeared anxious, which Creque

did before the Ativan injection. Dr. Kalin also testified that if a man

Creque's size consumed even 24 beers over 24 "evenly spaced" hours, his

blood alcohol level would probably be zero at any given time. (TR. 2371-

74.) Based on Dr. Kalin's testimony, any additional testimony from

another expert, like Dr. Lopez, regarding the effects Creque might have

experienced from his alleged alcohol and drug use would have been

merely cumulative. Counsel's performance is not constitutionally

32 CR-2023-0654

deficient simply because they could have presented additional,

cumulative evidence regarding what the combination of those factors

could have had on whether he knowingly, intelligently, and voluntarily

waived his rights or whether they affected his intent. See, e.g.,

McWhorter, 142 So. 3d at 1237 (noting that "additional evidence ... would

have been cumulative to evidence presented by trial counsel or would

have been inconsistent with evidence presented to support trial counsel's

reasonable strategy").

Furthermore, any possible effects from the combined use of drugs

and alcohol were refuted by ample evidence that Creque did not appear

"intoxicated" to anyone. For example, the man who sold Creque the gun

at the pawn shop mere hours before the robbery and murders was a

former EMT, and he testified that Creque had no signs of being "under

the influence" of anything and noted that he would have noticed signs

such as "pinpoint pupils," "jitteriness," and "faster respirations." The

pawn-shop clerk also testified that it would be illegal to sell a gun to an

intoxicated person and would result in the business losing its license to

sell firearms. (TR. 2400.) Likewise, the medical personnel at the hospital

noted in Creque's chart when he reported to the hospital that, in addition

33 CR-2023-0654

to his wounds appearing to be self-inflicted (indicating Creque was clear

thinking enough to plan and execute his strategy, formed immediately

after the crimes, to conceal his crimes), Creque was "[a]ppropriate,

coherent," "[o]riented … times three [person, place, and time]," and

"[a]nxious." (TR. 227.) Notably, "slow to respond," "confused,"

"aggressive" were not checked on Creque's medical forms. (TR. 228.) Dr.

Kalin, after reviewing both the audio and video recordings of Creque’s

police interview, testified that Creque was both "talkative and quiet,"

"back and forth" and "not stuttering" and "not slurring his speech" during

the audio recording. (TR. 2380-81.) Dr. Kalin also observed "moments of

lucidity" in the video recording. (TR. 2383.) Dr. Kalin further testified

he would "expect more sedation than excitation" if a person had "ingested

Klonopin, Xanax, cocaine, alcohol, herbal marijuana, [and] synthetic

marijuana" during a 24-hour period. (TR. 2385.) In sum, no witness

indicated that Creque's statements were involuntary or unknowing or

unintelligent but only that he was, at most, as Dr. Kalin testified,

"sleepy." And, "alleged fatigue is only a factor to be considered … in

determining whether" a statement is "voluntary." Grayson v. State, 824

So. 2d 804, 832 (Ala. Crim. App. 1999). Moreover, as already stated, the

34 CR-2023-0654

trial court found that Creque's statements were admissible after viewing

and reviewing all the evidence, and this Court agreed. As in Grayson,

"the State presented sufficient evidence that the appellant's statement

was knowingly and voluntarily given." Id. at 835. Again, the circuit court

properly summarily dismissed Creque's claim because he failed to plead

any facts to show that counsel's performance was deficient, much less

that, but for counsel's actions, the result would have been different,

particularly when the underlying claim is without merit.

We further recognize, as Creque asserts, that " 'a determination on

direct appeal that there has been no plain error does not automatically

foreclose a determination of the existence of the prejudice required under

Strickland to sustain a claim of ineffective assistance of counsel.' "

(Creque's brief, p. 94 (quoting Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala.

2005) (recognizing, however, that "it may be the rare case in which the

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

Strickland test will result in different outcomes").) However, Creque

does not address the fact that this Court's review of the denial of his

motion to suppress was a preserved claim, and, if the underlying issue is

held to be without merit when preserved, it does automatically foreclose

35 CR-2023-0654

a postconviction claim of ineffective assistance in presenting that claim.

Creque did plead additional facts that he asserts would have bolstered

his position, but he did not plead facts, including proposed testimony

from additional experts, sufficient to overcome the trial court's findings,

even as to his contentions reviewed for plain error, that Creque's

statements were "knowing, intelligent, and voluntary" and thus

admissible.

Likewise, Creque pleaded no facts to show that Dr. Kalin's being

retained the week before trial and viewing the video recording on the

same day prejudiced him because his testimony would have been

different if he had additional time. Creque pleaded no facts to show that

the timing of Dr. Kalin's employment would have made a difference,

particularly considering that Creque's pretrial statements were held to

be admissible.

Finally, Creque's contention that counsel was ineffective for

waiting "until the middle of trial" to develop a trial strategy is a bare

allegation with no factual support. Moreover, Creque also pleaded no

facts to show that counsel's strategy was deficient. That Creque

accidentally shot Graff and was guilty of felony murder, not capital

36 CR-2023-0654

murder, was a reasonable strategy based on Creque's trial testimony that

he did not shoot Aguilar and only "accidentally" shot Graff. See, e.g.,

McWhorter, 142 So. 3d at 1237 (noting that "additional evidence ... would

have been cumulative to evidence presented by trial counsel or would

have been inconsistent with evidence presented to support trial counsel's

In sum, some of Creque's contentions were waived on appeal, but,

regardless, the circuit court properly summarily dismissed all of Creque's

various contentions regarding the alleged ineffective assistance of trial

counsel in arguing the motion to suppress because they were either

insufficiently pleaded, without merit, or both. This is particularly true

because the pleaded facts would have been cumulative and because

Creque "pleaded no facts to explain how, if the jury had known this

additional information, there is a reasonable probability that [Creque]

would not have been convicted or sentenced to death." Belcher, ___ So.

3d at ___.

B. Reliability of Creque's Confession

Creque next argues that trial counsel "failed to effectively challenge

[the] reliability" of his confession after it was admitted. (Creque's brief,

37 CR-2023-0654

p. 42.) Specifically, Creque cites one case, Gaddy v. State, 698 So. 2d

1100, 1118 (Ala. Crim. App. 1995), for the proposition that intoxication is

a factor to be considered by a jury "in determin[ing] the weight and

credibility to be accorded to the appellant's statement." (Creque's brief,

p. 42.) Creque then alleges, in full:

"Among other things, counsel failed to: (1) hire a qualified expert, like Dr. Lopez, who could have opined that, given the substances in Creque's system when he made the statement, it was inherently unreliable; (2) elicit testimony from lay witnesses about Creque's level of intoxication on the night of the crime; (3) effectively point out the specific factual inaccuracies within Creque's confession; or (4) even make effective arguments about the unreliability of the confession which would have demonstrated that it was not to be trusted. Supra at 26-42. This also constitutes ineffective assistance of counsel."

(Creque's brief, p. 43.) Those contentions do not satisfy the requirements

of Rule 28(a)(10) and are waived for purposes of appellate review. See,

e.g., Calhoun v. State, 261 So. 3d 457, 472-73 (Ala. Crim. App. 2016)

(holding that Calhoun failed to "adequately argue" his ineffective

assistance contentions on appeal because he "merely restate[d] these

allegations from his petition" and failed to cite "legal authority to support

these contentions"), and Woodward v. State, 276 So. 3d 713, 746 (Ala.

Crim. App. 2018) (holding that Woodward's argument was waived

38 CR-2023-0654

because he "reassert[ed] this claim from his petition, but he made no

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

incorrect").

Moreover, we have already addressed why each of those contentions

is insufficiently pleaded and without merit. That Dr. Lopez would have

provided more favorable opinions does not render counsel ineffective,

particularly because Creque's statements were ruled admissible by the

trial court, that ruling was affirmed on direct appeal, any opinion on the

unreliability of those statements would have been based on speculation

as to how much alcohol and drugs Creque ingested before the crimes, and

multiple witnesses testified that Creque did not appear to be anything

other than somewhat "anxious" at first and later "sleepy." Creque failed

to plead facts to show that testimony from other witnesses would have

overcome the opinions of the multiple witnesses, including medical

professionals, who saw nothing but some initial anxiety and then

sleepiness in Creque shortly after the crimes. Counsel could not be

deficient for failing to make a losing argument. Creque also failed to

plead how pointing out the inconsistencies would have changed the

outcome of the proceedings to a reasonable probability. Indeed, counsel

39 CR-2023-0654

could not be constitutionally ineffective for failing to point out

inaccuracies within Creque's highly detailed confession (in an attempt to

show he was "under the influence") when doing so would have only

emphasized the multiple "stories" Creque had fabricated and that he had

injured himself and gone to the hospital in an attempt to escape

punishment for his crimes. " 'An ineffective-assistance claim does not

arise from the failure to present … evidence where that evidence presents

a double-edged sword.' " Washington v. State, 95 So. 3d 26, 53 (Ala. Crim.

App. 2012) (quoting Reed v. State, 875 So. 2d 415, 437 (Fla. 2004)).

C. Specific Intent to Kill

Creque contends that trial counsel failed to argue that, based on

the substances he had ingested, he did not have the "requisite mens rea

to support a capital murder conviction." (Creque's brief, p. 44.) Creque

further contends that "[t]here is no doubt that Creque was entitled to

present evidence on this point [that he was too intoxicated to form the

specific intent for capital murder] to the jury … and that he was entitled

to" an intoxication charge." (Creque's brief, p. 45.) Creque again alleges

what Dr. Lopez would have testified to and, again, fails to recognize that

his opinions would have been based on speculation and refuted by the

40 CR-2023-0654

record of direct observations of Creque shortly before and shortly after

the crimes by others both in person and in reviewing the audio and video

recordings of Creque's statements to law-enforcement officers.

The record shows that evidence of Creque's alleged intoxication was

before the jury -- Creque testified that he was under the influence of

many substances, not just when he gave his statements, but when he

arrived at the Krystal restaurant. And, an intoxication instruction was

given to Creque's jury. (TR. 2618 ("Intoxication of the Defendant,

whether voluntary or involuntary, may be considered by the jury

whenever it's relevant to negate an element of the offense charged such

as intent.").) Counsel also argued to the jury that "capital murder has to

be an intentional murder … an intentional act." (TR. 2571.) Counsel

then "plead[ed] with [the jury] to pay special attention to … intent and

what intent is and how intent factors into capital murder." (TR. 2572.)

Counsel also explained that "if someone unintentionally kills someone

during the course of another felony, and robbery is another felony, that

that constitutes felony murder but not capital murder." (TR. 2572.)

Counsel then argued that "[w]hat [Creque] described from the witness

stand is felony murder and not capital murder" and that the jury should

41 CR-2023-0654

return a verdict of not guilty as to the three capital-murder charges. (TR.

2572-73.) Counsel asked the jury to instead find Creque guilty of the two

felony murders that he admitted to during his trial testimony. (TR.

2573.) The trial court properly charged the jury on the lesser-included

offense of felony murder.4 (TR. 2605-09, 2614-18.) And, the trial "court's

instruction on the distinction between the capital offense of murder

during a robbery, which requires a specific intent to kill, and felony

murder, which does not require an intent to kill, was clear and concise."

Fletcher v. State, 621 So. 2d 1010, 1021 (Ala. Crim. App. 1993).

"Because the question of intent to kill is the sole and critical distinction between those two offenses, one of which carries a possible penalty of death and one which does not, there is an obvious and significant benefit to a defendant in having the jury instructed that it might consider his intoxication in deciding whether he had a specific intent to kill."

Id. Here, the trial court instructed the jury on both felony murder and

intoxication when it told the jury that "[i]ntoxication of the Defendant,

4We note that, contrary to Creque's brief on appeal, which asserts

that "[f]elony murder is still a capital offense under Alabama law" (Creque's brief, p. 46), the law is clear that " '[n]o defendant can be found guilty of a capital offense unless he had an intent to kill, and that intent to kill cannot be supplied by the felony-murder doctrine.' " Morton v. State, 154 So. 3d 1064, 1080 (Ala. Crim. App. 2013) (quoting Ex parte Woodall, 730 So. 2d 652, 657 (Ala. 1998)).

42 CR-2023-0654

whether voluntary or involuntary, may be considered by the jury

whenever it's relevant to negate an element of the offense charged such

as intent." (TR. 2618.) And, Creque's contention that trial counsel should

have also requested a manslaughter instruction based on his

"intoxication" is "not supported by the evidence," as properly recognized

by the circuit court in summarily dismissing this claim. (C. 778.)

" 'Voluntary intoxication and manslaughter as a lesser included offense of intentional murder are interrelated and often overlapping subjects. "Voluntary drunkenness neither excuses nor palliates crime." Ray v. State, 257 Ala. 418, 421, 59 So. 2d 582, 584 (1952). "However, drunkenness due to liquor or drugs may render [a] defendant incapable of forming or entertaining a specific intent or some particular mental element that is essential to the crime." Commentary to Ala. Code 1975, § 13A-3-2. Where the defendant is charged with a crime requiring specific intent and there is evidence of intoxication, " 'drunkenness, as affecting the mental state and condition of the accused, becomes a proper subject to be considered by the jury in deciding the question of intent.' " Silvey v. State, 485 So. 2d 790, 792 (Ala. Cr. App. 1986) (quoting Chatham v. State, 92 Ala. 47, 48, 9 So. 607 (1891)). Consequently, when the crime charged is intentional murder " 'and there is evidence of intoxication, the trial judge should instruct the jury on the lesser-included offense of manslaughter.' " McNeill v. State, 496 So. 2d 108, 109 (Ala. Cr. App. 1986) (quoting Gray v. State, 482 So. 2d 1318, 1319 (Ala. Cr. App. 1985)).

" 'It is clear that "[a] defendant is entitled to a charge on a lesser-included offense if there is any reasonable theory from the evidence that would support the position." Ex parte Oliver, 518 So. 2d 705, 706 (Ala. 1987). This is true regardless

43 CR-2023-0654

of "however weak, insufficient, or doubtful in credibility" the evidence concerning that offense. Chavers v. State, 361 So. 2d 1106, 1107 (Ala. 1978). When there is evidence that would support a charge on a lesser-included offense, the defendant is entitled to the charge "even where 'the defendant denies the charge,' Ex parte Pruitt, 457 So. 2d 456, 457 (Ala. 1984), and [where] 'the evidence supporting the defendant's position is offered by the State.' Silvey v. State, 485 So. 2d 790, 792 (Ala. Cr. App. 1986). Accord, Ex parte Stork, 475 So. 2d 623, 624 (Ala. 1985)." Starks v. State, 594 So. 2d 187, 195 (Ala. Cr. App. 1991).

" 'A charge on intoxication should be given if " 'there is an evidentiary foundation in the record sufficient for the jury to entertain a reasonable doubt' " on the element of intent. Coon v. State, 494 So. 2d 184, 187 (Ala. Cr. App. 1986) (quoting Government of the Virgin Islands v. Carmona, 422 F.2d 95, 99 n. 6 (3d Cir. 1970)). See also People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 966-67, 462 N.E.2d 143, 143- 44 (App. 1984) ("[a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis"). An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So. 2d 1126, 1128 (Ala. Cr. App. 1992); Crosslin v. State, 446 So. 2d 675, 682 (Ala. Cr. App. 1983), where the defendant denies the commission of the crime, Coon v. State, 494 So. 2d at 187; see Moran v. State, 34 Ala. App. 238, 240, 39 So. 2d 419, 421, cert. denied, 252 Ala. 60, 39 So. 2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.' "

Lindsay v. State, 326 So. 3d 1, 45-46 (Ala. Crim. App. 2019) (quoting

Fletcher v. State, 621 So. 2d 1010, 1019 (Ala. Crim. App. 1993)).

44 CR-2023-0654

In Lindsay, this Court rejected the argument that plain error

resulted when the trial court failed to instruct the jury on voluntary

intoxication and manslaughter because "[t]here were only vague

assertions that Lindsay was under the influence of drugs 'around' the

time" of the murder. 396 So. 3d at 46. This Court further explained that

" 'evidence that the defendant ingested alcohol or drugs, standing alone,

does not warrant a charge on intoxication.' " Id. (quoting Pilley v. State,

930 So. 2d 550, 562 (Ala. Crim. App. 2005)). Likewise, " ' "there must be

evidence that the ingestion caused a disturbance of the person's mental

or physical capacities and that that mental or physical disturbance

existed at the time the offense was committed." ' " Id. (quoting Mashburn

v. State, 148 So. 3d 1094, 1126 (Ala. Crim. App. 2013), quoting in turn

Lee v. State, 898 So. 2d 790, 838 (Ala. Crim. App. 2001) (emphasis added

in Mashburn).

In Ex parte McWhorter, 781 So. 2d 330, 333-34 (Ala. 2000),

McWhorter argued

"that he presented evidence indicating he was intoxicated at the time of the killing, that the trial court instructed the jury that evidence of voluntary intoxication can support a finding of a lack of the intent necessary to a finding of capital murder, and that the trial court therefore erred in refusing to instruct

45 CR-2023-0654

the jury on manslaughter, felony murder, and 'intentional murder' as lesser-included offenses."

As in Creque's case, the evidence showed that the crime was "carefully

planned and carried out." Id. at 334. And, as in this case, McWhorter

divided the stolen property with his accomplices and "hid that property"

as well as other evidence of the crime. Id. Similarly, Creque disposed of

his clothing and shoes in a random dumpster not at his own apartment

and hid the money in a stereo speaker after the crimes. Also, as in this

case, McWhorter gave a voluntary and very detailed statement within a

day of the crime. Id. at 334-38. Although McWhorter, like Creque,

alleged "a lack of memory, on account of intoxication, … he then

furnishe[d] detailed information about how the crime was committed."

Id. at 338. The Alabama Supreme Court recognized that "[h]is action on

the night of the crime is wholly inconsistent with his self-serving

statements suggesting he had a diminished capacity." Id. at 339. Thus,

the trial court's finding that the evidence was "insufficient to warrant

giving instructions on lesser-included offenses" was affirmed because

"McWhorter d[id] not point to any evidence indicating he was intoxicated

at the time of the commission of the crime," and witnesses noted that he

"did not appear to be under the influence of drugs or alcohol" around the

46 CR-2023-0654

time of the crime. Id. Moreover, as for McWhorter's contention that the

trial court specifically erred by not giving a manslaughter instruction,

the Alabama Supreme Court recognized that "[a]n instruction on

manslaughter would have been incompatible with McWhorter's defense."

Id. Although McWhorter's contentions were reviewed for plain error on

direct appeal, the Alabama Supreme Court explained that "the evidence

suggested no reasonable theory that would support a manslaughter

charge." Id.

As the circuit court recognized, there was insufficient evidentiary

support for a manslaughter charge in Creque's trial. As in Ex parte

McWhorter, "the only evidence presented at trial regarding [Creque's]

intoxication" was his own self-serving testimony that he had consumed

large amounts of drugs and alcohol on the day of the robbery and

murders. Id. at 341; (TR. 2050-51, 2259-63.) Creque's testimony was

never corroborated other than by Brittany Orr's very vague and general

testimony that, around the time of the murders, Creque was using a lot

of marijuana and spice and drinking a lot of alcohol. Brittany's testimony

did not support any reasonable finding regarding how much Creque had

consumed on the day of the crimes (much less at the time of the crimes)

47 CR-2023-0654

or that he was actually intoxicated. (TR. 1946-48.) Cf. Ashley v. State,

651 So. 2d 1096, 1098 (Ala. Crim. App. 1994) (holding that the trial court

erred in refusing a manslaughter instruction when two witnesses

testified that the defendant appeared to be "high" or "on drugs"). The

most specific of Brittany's testimony was that she and Creque and

Gholston smoked some "weed" after Creque bought the gun from the

pawn shop, but she later testified that she was "not sure" if Creque

smoked marijuana the day of the murders. (TR. 1918-19, 1946.) Megan

Orr testified that on the night of August 23, 2011, Creque was at her

apartment for about "thirty minutes" around 8:00 or 9:00 p.m. and that

she and Gholston and Creque smoked one natural marijuana blunt and

that no one took any cocaine or pills. (TR. 1407-08.) Neither suggested

that Creque was intoxicated the day of the shooting or night before the

crimes, much less at the time they were committed. Even Creque's own

testimony never stated that he was "intoxicated" at the time of the

crimes, much less to the point of "insanity." See, e.g., Ex parte Bankhead,

585 So. 2d 112, 121 (Ala. 1991) ("the intoxication necessary to negate

specific intent and, thus, reduce the charge, must amount to insanity").

Indeed, as in Ex parte McWhorter, "[t]he evidence offered by [Creque] as

48 CR-2023-0654

to his alleged intoxication was glaringly inconsistent with his own …

detailed descriptions of the events." 781 So. 2d at 342. (See TR. 2282-

2307 (Creque provided a detailed recitation of everything that occurred,

from the clothing and shoes he wore, where exactly they parked,

explaining to his accomplices how they would get inside Krystal, waiting

behind a dumpster, everything that happened inside, running away,

splitting the money, getting a change of clothes from Eldred, lying to

Eldred and Brittany that Gholston shot both victims, asking Eldred to

stop at a dumpster on the way to his and Brittany's apartment so that he

could dispose of the clothing and shoes he wore during the crimes,

fabricating a story to evade responsibility, faking injuries, and going to

the hospital specifically to tell his "story" as a "victim" so that his true

involvement would not be suspected).)

In addition, other evidence presented at trial refutes Creque's

postconviction claims of intoxication. Creque testified that he arrived at

the Krystal at approximately 4:00 a.m. (TR. 2284.) The hospital notified

police that Creque had reported to the hospital as a victim of the Krystal

robbery at about 5:55 a.m., less than two hours after the crimes. (TR.

1579.) Dr. Thomas Christian treated Creque that morning and tested his

49 CR-2023-0654

functioning by the Glasgow Coma Scale, testifying that Creque scored a

15, which "means you're alert and oriented and in a normal state of

mental abilities." (TR. 1740.) Moreover, Dr. Christian testified he "had

no reason to believe" that Creque was under the influence of any drug.

(TR. 1745.) Creque was merely "anxious that was all," for which Dr.

Christian ordered a "mild side of a normal dosage" of Ativan, which

Creque was given at 6:33 a.m. (TR. 1738, 1741.) Likewise, Det. Archer

testified that Creque "was not impaired at all." (TR. 2143.) Thus,

Creque's "self-serving statements suggesting he was intoxicated at the

time of the killing … [are], as a matter of law, insufficient to satisfy the

rigorous standard of showing that the intoxication relied upon to negate

the specific intent required for a murder conviction amounted to

insanity." Ex parte McWhorter, 781 So. 2d at 342.

Thus, although the trial court generously instructed Creque's jury

on intoxication, giving him the benefit of that instruction combined with

the instruction on the lesser-included offense of felony murder, Creque

was not entitled to it. "Because there was no substantial evidence

indicating that at the time of the crime [Creque] was intoxicated to such

a degree that the intoxication amounted to insanity, the trial court's

50 CR-2023-0654

voluntary-intoxication charge was neither prejudicial nor necessary." Ex

parte McWhorter, 781 So. 2d at 343. Likewise, a manslaughter

instruction was unwarranted by the evidence because there was "no

indication that [Creque] was so intoxicated that he could not form the

necessary intent, despite his statement that he had ingested drugs and

alcohol before the murder." Hutcherson v. State, 677 So. 2d 1174, 1175

(Ala. Crim. App. 1994) (holding that it was not plain error for the trial

court to fail to give a manslaughter charge even though it had given an

instruction on intoxication). As this Court held in its plain-error review

on direct appeal of Creque's conviction, "Creque [was] not entitled to a

holding that the trial court committed plain error when it failed to sua

sponte charge the jury on reckless manslaughter" based on his alleged

intoxication. Creque, 272 So. 3d at 716. Because Creque was not entitled

to a manslaughter instruction and because Creque has pleaded no facts

that would show that counsel had other witnesses who could testify to his

being intoxicated at the time of the crimes, his trial counsel could not

have been constitutionally ineffective for not requesting a manslaughter

instruction. In so holding, we recognize that "a finding of no plain error

on direct appeal" does not "automatically foreclose" Creque from arguing

51 CR-2023-0654

that he was prejudiced by counsel's failure to present additional evidence

that would have supported the giving of a manslaughter instruction.

White v. State, 343 So. 3d 1150, 1183 (Ala. Crim. App. 2019). However,

as the Alabama Supreme Court recognized, "it may be the rare case in

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

the Strickland test will result in different outcomes." Ex parte Taylor, 10

So. 3d 1075, 1078 (Ala. 2005). Here, as in White, Creque "has not pleaded

any facts whatsoever in his … petition that would show that this is a 'rare

case' " in which a different outcome is warranted after the denial of relief

under plain-error review. White, 343 So. 3d at 1183. Indeed, Creque

never alleged in his petition what witnesses would have testified that he

was intoxicated at the time of the crimes. For example, although Creque

alleges that "[t]rial counsel also failed to contact Taurus Pickett, who was

with Mr. Creque during the relevant time frame when he was drinking"

(C. 275), Creque never alleged in his petition what substances Pickett

would have testified that Creque had consumed, much less how much he

consumed or when he consumed, or that Pickett would testify that

Creque was "intoxicated" at or around the time of the crimes. Indeed,

Creque wanted to obtain police records to investigate whether there

52 CR-2023-0654

were, "for example, … notations or witness statements regarding Mr.

Creque's level of intoxication." (C. 387.) Creque simply did not meet his

burden of pleading his contentions regarding his alleged "intoxication" in

support of his claim that trial counsel was ineffective for not requesting

a manslaughter instruction.

Moreover, even if Creque's trial counsel had been deficient in failing

to request an instruction on the lesser-included offense of manslaughter,

Creque was not prejudiced by that decision. Creque was charged with

three counts of capital murder involving the intentional murder of two

individuals during the course of a robbery. The trial court instructed the

jury that all three counts of capital murder included the necessary

element of an "intent to kill." (TR. 2612.) The trial court also instructed

the jury that it should consider the lesser-included offense of felony

murder, which involves the unintentional death of an individual "in the

course of or in the furtherance of the crime of robbery in the first degree."

(TR. 2616.) Following its felony-murder jury charge, the trial court

instructed the jury that "[i]ntoxication of the Defendant, whether

voluntary or involuntary, may be considered by the jury whenever it's

relevant to negate an element of the offense charged such as intent." (TR.

53 CR-2023-0654

2618.) Although Creque's petition does not give the exact content of the

manslaughter jury charge that he thinks his trial counsel should have

requested, the petition does argue that "an instruction for the lesser

included offense of manslaughter is warranted since intoxication can

negate the element of specific intent to kill required for a conviction of

capital murder." (C. 476.) Yet, Creque does not acknowledge that this is

exactly what the trial court's instruction on felony murder did. It allowed

the jury to find Creque guilty of the lesser-included offense of felony

murder if the jury believed that Creque's level of intoxication prevented

him from forming the intent to kill the two victims. In Brown v. State,

623 So. 416, 420-21 (Ala. Crim. App. 1993), this Court addressed the

same argument and held that

"[t]he jury was given the choice of finding the appellant guilty of capital murder, guilty of felony murder, or not guilty of any crime. The jury convicted him of capital murder. 'Therefore, we must logically conclude that an instruction on … [a lesser included offense], although proper, would not have affected the outcome of this case.' Ex parte Jordan, 486 So. 2d 485, 489 (Ala. Cr. App. 1986). Thus, the refusal to instruct on any other lesser included offenses was, at the worst, merely harmless error."

Thus, even if the evidence at trial had warranted a jury instruction on

the lesser-included offense of manslaughter, Creque's convictions for

54 CR-2023-0654

capital murder, not felony murder, make it clear that Creque was not

prejudiced by counsel's decision not to request a manslaughter jury

instruction.

Finally, to the extent that Creque argues that the myriad alleged

errors regarding his alleged intoxication "collectively" violated his right

to effective assistance of counsel, that claim was properly summarily

dismissed because "Alabama does not recognize a 'cumulative effect'

analysis for ineffective-assistance-of-counsel claims." Carruth v. State,

165 So. 3d 627, 651 (Ala. Crim. App. 2014) (citing Mashburn v. State, 148

So. 3d at 1117); see also McWhorter v. State, 142 So. 3d 1195, 1235 (Ala.

Crim. App. 2011) ("[A]n aggregate weighing is not required by Alabama

law.").

In sum, Creque's various contentions that trial counsel were

constitutionally ineffective for not arguing that Creque lacked the

specific intent to kill and for not seeking a manslaughter instruction were

properly summarily dismissed because they were, as the circuit court

found, insufficiently pleaded. See, e.g., Lee v. State, 44 So. 3d 1145, 1156

(Ala. Crim. App. 2009) ("If the court cannot determine whether the

petitioner is entitled to relief after considering all of the factual

55 CR-2023-0654

assertions to be true, then the petitioner has failed to meet his burden of

pleading pursuant to Rule 32.6(b), Ala. R. Crim. P."). Likewise, those

contentions were refuted by the record and are without merit.

II. Ineffective Assistance During Juror Selection/Juror Misconduct

Creque argues that trial counsel rendered constitutionally

ineffective assistance by failing to: "(1) make a timely 'Batson'[5] objection,

(2) make basic inquiries or strike potentially biased jurors, and (3)

address juror misconduct." (Creque brief, p. 47.) Those contentions are

also insufficiently pleaded and without merit.

A. Failure to "Timely" Make a Batson Objection

Creque contends that trial counsel rendered ineffective assistance

by failing to "timely object to the State's use of racially discriminatory

peremptory strikes under Batson." (Creque's brief, p. 47.) Creque argues

on appeal, as he did in his petition, that trial counsel's performance was

deficient because: the State used its peremptory challenges to remove five

of six prospective Black jurors; Creque, a Black man, was tried for an

"interracial crime" by an "all-white jury"; counsel's Batson objection was

made after the jury was sworn; and counsel was "unprepared" to argue

5Batson v. Kentucky, 476 U.S. 79 (1986).

56 CR-2023-0654

the Batson motion when the trial court belatedly considered it. (Creque's

brief, pp. 48-53; C. 407, 417, 447-52.) Notably, although arguing that

trial counsel's performance was "deficient," Creque's postconviction

counsel has failed to plead any facts in his petition (or even allege any on

appeal) that would indicate that an "adequately" argued Batson motion

would have been successful. Indeed, the petition and initial brief on

appeal are devoid of any contentions suggesting that the State engaged

in a pattern of strikes against minority jurors, that the State's reasons

for its strikes were pretextual, or that the State engaged in disparate

treatment. (Creque's brief, pp. 47-53; C. 407, 417, 447-52.) In other

words, Creque pleaded no facts to show a prima facie case of

discrimination. No jurors or prospective jurors are even mentioned in

either Creque's petition or his initial brief on appeal. In short, Creque

pleaded no facts that would suggest any reasonable probability that, but

for trial counsel's performance, the result of his proceedings would have

been different, particularly considering that Creque's Batson allegations

were thoroughly addressed and rejected on direct appeal.

On direct appeal, "Creque argue[d] that the prosecutor's reasons for

striking the black veniremembers were pretextual and that the State's

57 CR-2023-0654

treatment of black veniremembers and white veniremembers were

disparate." Creque, 272 So. 3d at 704. Because those particular

arguments "were not presented to the trial court," this Court reviewed

them on direct appeal for "plain error." Id. at 707-08. However, this

Court thoroughly considered the State's proffered reasons for its strikes,

and, in addressing the five Black prospective jurors for whom the State

exercised peremptory strikes, this Court repeatedly noted that the

State's strikes were "race neutral." Id. at 708-10.

Prospective Juror A.B.'s ex-husband had been arrested for drug

trafficking, and her nephew had been arrested on drug charges as well.

Id. Likewise, Prospective Juror "L.J.'s brother had been convicted of rape

and had been sentenced to prison, and his cousin had been convicted of

shooting into an occupied dwelling and had been sentenced to prison."

Id. at 709. "[T]he exercise of a peremptory strike against a veniremember

where a member of his or her family had been arrested is a race-neutral

reason." Id. at 708 (citing Townes v. State, 253 So. 3d 447 (Ala. Crim.

App. 2015), and Fearn v. City of Huntsville, 568 So. 2d 349 (Ala. Crim.

App. 1990)). Moreover, the State had struck "similarly situated jurors of

both races," striking those whose family members had been arrested for

58 CR-2023-0654

"serious crimes." Id. at 708, 709 (citing Wilson v. State, 142 So. 3d 732

(Ala. Crim. App. 2010)). A prosecutor's strike is not pretextual "where

there are relevant differences between the jurors who were struck and

those who were not struck." Id. at 708 (citing Sharp v. State, 151 So. 3d

342, 363 (Ala. Crim. App. 2010)). The State had explained that it struck

Prospective Juror G.P. "because he had been arrested and because he

knew a potential witness, Kenny Morrow, who had worked at the Krystal

where the murders took place" and who was Brittany Orr's stepfather

"and the step grandfather of the children Creque had with Brittany Orr."

Id. at 708. "[T]he State's strike was race-neutral because G.P. was not

similarly situated to the white jurors." Id. at 709. The State contended

that Prospective Juror M.P. was struck "because she gave inconsistent

opinions on the death penalty," and, after reviewing the record of voir

dire examination, we agreed that her answers regarding imposition of

the death penalty "were ambiguous; thus, the prosecutor's strike was

race neutral." Id. Similarly, the State struck Prospective Juror T.M.

because she "waffled" on whether she could impose the death penalty,

and the trial court agreed it " 'would have struck her [for that reason] in

a heartbeat.' " Id. at 710 (quoting R. 1024). We again agreed that,

59 CR-2023-0654

"because her answers were ambiguous, … the strike of T.M. was race-

neutral." Id. (citing Mashburn v. State, 7 So. 3d 453 (Ala. Crim. App.

2007)). Moreover, we explained that "[t]he trial court was in a far better

position than is this Court to determine matters of credibility, and it had

great discretion to distinguish whether the State's explanation for each

of its strikes was truthful or pretextual." Id. This Court concluded that

"[n]one of Creque's [Batson] allegations of error as to jury selection have

merit, and he is not entitled to relief as to those claims. Id. at 710.

In arguing that he is entitled to a new trial because counsel was

ineffective for failing to "timely" and "adequately" raise a Batson

challenge, Creque relies on Ex parte Yelder, 575 So. 2d 137, 138 (Ala.

1991), for the proposition that prejudice is presumed if trial counsel failed

"to make a timely Batson objection when a prima facie case exists of

purposeful discrimination by the State in the jury selection process."

Creque then alleges that a prima facie case was made by the numbers

alone in that "the State removed five of six Black jurors." (Creque's brief,

p. 53.) First, "numbers alone" are insufficient "to establish a prima facie

case of racial discrimination." Shanklin v. State, 187 So. 3d 734, 766 (Ala.

Crim. App. 2014). Cf. Ex parte Thomas, 659 So. 2d 3, 5 n.1 (Ala. 1994)

60 CR-2023-0654

(noting "that a defendant can establish a prima facie case solely on the

fact that a prosecutor used a large number of his peremptory challenges

to strike black veniremembers"). Second, although the State volunteered

reasons for its strikes, a prima facie case of discrimination was not found

by the trial court during trial. Creque's circumstances are, thus, easily

distinguished from those in Ex parte Yelder, upon which he relies to

support this claim.

In Ex parte Yelder, the Alabama Supreme Court

"adopt[e]d the dissenting opinion of Judge Bowen [in Yelder v. State, 575 So. 2d 131 (Ala. Crim. App. 1990)] and h[e]ld that the failure of trial counsel to make a timely Batson objection to a prima facie case of purposeful discrimination by the State in the jury selection process through its use of peremptory challenges is presumptively prejudicial to a defendant."

575 So. 2d at 139. The Alabama Supreme Court then "reverse[d]

the judgment of the Court of Criminal Appeals [based on counsel's

alleged ineffective assistance for failing to raise a timely Batson

challenge] … and … remand[ed] … to the trial court for a Batson

hearing." Id. Creque’s reliance on the presumptions of prejudice

established by Ex parte Yelder is misplaced for several reasons. In

Ex parte Yelder, the Batson claim was raised in a motion for a new

trial after the trial had concluded, and a Batson hearing was never

61 CR-2023-0654

held. See Yelder v. State, 575 So. 2d 131, 137 (Ala. Crim. App. 1990)

(Bowen, J., dissenting) ("We do not know yet whether appellant’s

trial was marred by purposeful racial discrimination, because no

Batson hearing was held."). By contrast, although Creque's Batson

challenge was untimely because it was made after the jury was

sworn, it was made before any witness testified, and a Batson

hearing was, in fact, conducted. (R. 1017-25).

The trial court found that Creque failed to make a prima facie case

of discrimination, but, because the State voluntarily offered reasons for

its strikes, the trial court considered those as well and "independently

determined that the State's strikes were race-neutral and that the State

[was] not required to give its reasons for the strikes, and that when the

State then offered its reasons for the record, the trial court put forth

additional reasons it found would have supported a race-neutral strike."

Creque, 272 So. 3d 659. In short, the trial court "examined and agreed

with the State's strikes before it allowed Creque to make a Batson

objection." Id. In summarily dismissing this claim in Creque's

postconviction petition, the circuit court also found that Creque had

failed to plead any facts "to show a prima facie case of discrimination and

62 CR-2023-0654

fail[ed] to show that the race-neutral reasons provided by the State were

pretextual." (C. 772.) This Court also thoroughly considered and rejected

Creque's Batson arguments on direct appeal, concluding that there was

no purposeful racial discrimination and thus no Batson violation. See

Creque, 272 So. 3d at 710 ("We have no basis on which to conclude that

the trial court’s decision on discriminatory intent was clearly erroneous,

so we will not overturn that decision. … None of Creque's allegations of

error as to jury selection have merit, and he is not entitled to relief as to

those claims.").

Moreover, the Alabama Supreme Court has made clear "that [the]

holding in Yelder does not relieve the defendant of his burden of meeting

the first prong of the Strickland test -- a showing of deficient performance

by counsel." Ex parte Frazier, 758 So. 2d 611, 615 (Ala. 1999). "If the

record does not show a prima facie case of purposeful discrimination, then

an appellate court will not assume that the defendant’s attorney was

ineffective in not making a Batson motion." Id. Thus, counsel's failure

to raise a meritless Batson challenge before the jury was sworn could not

have resulted in deficient performance under the first prong of Strickland

because counsel cannot be ineffective for failing to raise a meritless issue.

63 CR-2023-0654

See, e.g., McMillan v. State, 258 So. 3d 1154, 1191 (Ala. Crim. App. 2017)

(" 'Because the substantive claim underling the claim of ineffective

assistance of counsel has no merit, counsel could not be ineffective for

failing to raise this issue.' ") (quoting Lee v. State, 44 So. 3d 1145, 1173

(Ala. Crim. App. 2009))).

Finally, to the extent that Creque contends that both his trial and

appellate counsel were ineffective for "failing to object" or raise on appeal

"the trial court's patently incorrect reasons for rejecting the untimely

Batson objection on the merits" (Creque's brief, p. 48), Creque's four-

sentence contentions do not satisfy the requirements in Rule 28(a)(10),

Ala. R. App. P., and thus those contentions are waived. Moreover,

Creque's contentions are not properly before this Court because they

were not raised below. See, e.g., Travis v. State, 407 So. 3d 325, 338 (Ala.

Crim. App. 2023) ("[T]his Court has held that a Rule 32 petitioner cannot

raise on appeal a postconviction claim that was not included in either his

original petition or in any of his amendments to his petition." (citing

Arrington v. State, 716 So. 2d 237, 239 (Ala. Crim. App. 1997) ("An

Appellant cannot raise an issue on appeal from the denial of a Rule 32

petition, which was not raised in the Rule 32 petition."))).

64 CR-2023-0654

B. Failure to "Effectively" Question and Strike Jurors

Creque contends that trial counsel rendered ineffective assistance

because they "failed to adequately question or strike jurors with obvious

biases." (Creque's brief, pp. 53-54.)

We initially note that Creque cites, in a footnote, four jurors or

prospective jurors whom he believes were not adequately questioned or

struck for cause by his trial counsel -- M.T., A.C., P.F., and W.N. Creque's

bare contentions, with no argument or analysis and merely record

citations with no citation to any relevant legal authority, do not satisfy

the requirements in Rule 28(a)(10), Ala. R. App. P. Thus, those

contentions are waived. See, e.g., C.B.D. v. State, 90 So. 3d 227, 239 (Ala.

Crim. App. 2011) ("Failure to comply with Rule 28(a)(10) has been

deemed a waiver of the issue presented."). Similarly, Creque provides a

single-paragraph discussion regarding each of the two specific jurors who

served on the jury -- K.T. and R.R. -- whom he believes should have been

struck by Creque's counsel based on alleged biases that he cites in the

trial record. However, neither of those factual allegations are supported

by any caselaw or legal analysis of any kind. (Creque's brief, pp. 54-55.)

Creque does not explain why the circuit court's summary dismissal of this

65 CR-2023-0654

claim was erroneous. Accordingly, Creque's contentions that trial

counsel rendered ineffective assistance by not striking Jurors K.T. and

R.R. are also waived on appeal for failing to satisfy the requirements in

Rule 28(a)(10). See, e.g., Calhoun v. State, 261 So. 3d 457, 472-73 (Ala.

Crim. App. 2016) (holding that Calhoun failed to "adequately argue" his

ineffective-assistance contentions on appeal because he "merely

restate[d] these allegations from his petition" and failed to cite "legal

authority to support these contentions").

In addition, Creque's contentions regarding Juror K.T. were

insufficiently pleaded. The entire allegation regarding Juror K.T. in

Creque's petition was:

"Additionally, Panel C member K.T. revealed that she had heard 'a lot' about the case prior to trial and had discussed with people what should happen in a trial about the case. When asked if the incident was 'kind of scary to' her, K.T. responded '[y]eah.' (R. 917-18.) Despite these prejudicial responses, Trial Counsel did not make any argument to strike K.T. for cause."

(C. 447.) Creque never alleged what Juror K.T. had heard or what she

thought should happen at trial or what additional questions trial counsel

should have asked and how Juror K.T.'s answers to those questions

would have justified a strike for cause. See, e.g., A.G. v. State, 989 So.

66 CR-2023-0654

2d 1167, 1173 (Ala. Crim. App. 2007) (holding that ineffective-assistance

claims were insufficiently pleaded when petitioner did not plead what

questions should have been asked or what the response to those questions

would have been). Moreover, although Creque attempts to add additional

factual contentions on appeal (for example, that "she lived 'very close' to

the crime scene"), those are not properly before this Court because they

were not raised in Creque's petition. "[T]his Court has held that a Rule

32 petitioner cannot raise on appeal a postconviction claim that was not

included in either his original petition or in any of his amendments to his

petition." Travis v. State, 407 So. 3d 325, 338 (Ala. Crim. App. 2023).

See also Rule 32.6(b), Ala. R. Crim. P. ("Each claim in the petition must

contain a clear and specific statement of the grounds upon which relief is

sought, including full disclosure of the factual basis of those grounds.").

Creque's contentions on appeal that trial counsel failed to ask

follow-up questions when Juror R.R. "admitted she knew all of the law

enforcement witnesses through work and suggested that the prosecution

had previously represented her nephew" are insufficiently pleaded.

(Creque's brief, pp. 54-55.) Creque alleged in his petition that

"[J]uror R.R. revealed during voir dire that her nephew was the victim of a shooting. (R. 524.) Because Trial Counsel

67 CR-2023-0654

failed to ask follow-up questions of R.R., it was not revealed until after the start of the penalty phase that her nephew had been murdered and that she felt particular sympathy for the victim's family in this case. (R. 2759.) This information was revealed by [Det.] Archer, who was confronted by R.R. outside the court while the trial was still ongoing. [Det.] Archer informed the prosecution that R.R. had approached [Det.] Archer, hugged him, and, within the context of discussing the impact of the case on the families involved, told [Det.] Archer that '[h]aving gone through that before myself, I know how hard it is.' (R. 2759.) R.R. also asked [Det.] Archer questions about the case, which he did not answer. (R. 2760-61.) At the very least, had they performed effectively, Trial Counsel would have learned sufficient information to exercise a peremptory strike to remove a juror who was openly sympathetic to the deceased individuals' families and had a close relative who was murdered. Instead, R.R. was seated on the jury and empowered to help decide Mr. Creque's fate."

(C. 446.) Creque's contentions that counsel should have "asked follow-up

questions" after Juror R.R. mentioned her nephew had been shot, should

have discovered Juror R.R.'s bias, and should have exercised a

peremptory strike to remove her were insufficiently pleaded because he

never pleaded what questions should have been asked and what Juror

R.R.'s responses would have been. See, e.g., A.G. v. State, 989 So. 2d at

1173 (holding that ineffective-assistance claims were insufficiently

pleaded when petitioner did not plead what questions should have been

asked or what the responses would have been). Moreover, Creque's

contention regarding counsel's not following up during voir dire on Juror

68 CR-2023-0654

R.R.'s knowing "law enforcement witnesses" is not before us because it

was not raised in Creque's petition. See, e.g., Travis, 407 So. 3d at 338,

and Rule 32.6(b).

Creque's claims regarding Jurors K.T. and R.R. are particularly

insufficiently pleaded considering that the standard for showing that

counsel was ineffective for failing to challenge a juror for cause or for

failing to exercise a peremptory strike is "actual bias."

" ' "[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased." Carratelli v. State, 961 So.2d 312, 324 (Fla.2007). "Because [the appellant's] claim of ineffective assistance of counsel is founded upon a claim that counsel failed to strike a biased juror, [the appellant] must show that the juror was actually biased against him." Miller v. Francis, 269 F.3d 609, 616 (6th Cir.2001) (citing Hughes v. United States, 258 F.3d 453, 458 (6th Cir.2001)). "[The appellant's] claim of ineffective assistance of counsel is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim that a biased juror prejudiced him, however, [the appellant] must show that the juror was actually biased against him." Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir.1995) (citing Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 71 L.Ed.2d 78 (1981)). [Likewise,] "[t]o show attorney error and prejudice in defense counsel's failure to use peremptory strikes for [biased] veniremen, it is necessary for [the appellant] to show that the veniremen did indeed harbor actual bias against [the appellant]." Parker v. Turpin, 60 F.Supp.2d 1332, 1362 (N.D. Ga. 1999). "Few decisions at trial are as subjective or prone to individual attorney strategy as

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juror voir dire, where decisions are often made on intangible factors." Miller, 269 F.3d at 620.

" ' "Because a defendant must demonstrate prejudice in a [post-conviction] proceeding, post- conviction relief based on a lawyer's incompetence with regard to the composition of the jury is reserved for a narrow class of cases where prejudice is apparent from the record, where a biased juror actually served on the jury."

" 'Jenkins v. State, 824 So. 2d 977, 982 (Fla. App. 2002).' "

Coan v. State, 322 So. 3d 552, 559 (Ala. Crim. App. 2020) (quoting

Perkins v. State, 144 So. 3d 457, 472 (Ala. Crim. App. 2012)).

Creque pleaded no facts in his petition that show that either Jurors

K.T. or R.R. were "actually biased" or that the record suggests that trial

counsel's performance was deficient. In addition, Creque's contentions

regarding Juror R.R. are without merit because they are based on

hindsight. As Creque contends on appeal, "counsel would later admit

that he should have struck [Juror R.R.] once her misconduct … came to

light." (Creque's brief, p. 55.) In other words, only after Juror R.R.

happened to run into Det. Archer during the penalty phase and

mentioned that she knew "how hard it is" did Creque wish he had asked

more questions during voir dire and struck her. However, " ' " [ a ] n

accused is entitled ' "not [to errorless counsel, and not [to] counsel judged

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ineffective by hindsight, but [to] counsel reasonably likely to render and

rendering reasonably effective assistance." ' " ' " Hunt v. State, 940 So. 2d

1041, 1059 (Ala. Crim. App. 2005) (citations omitted).

Moreover, Creque's contentions regarding Jurors K.T. and R.R. are

without merit on the face of the record because the facts and allegations

do not show "that the potential juror[s] harbored an actual bias against

the defendant." Coan v. State, 322 So. 3d at 560. As in Coan, during voir

dire, "[t]he potential juror[s] … indicated that [they] believed [they] could

be fair and impartial to both sides in this case." Id. Specifically, while

Juror K.T. said that she "heard a lot about [the crimes] at first," lived

"fairly close," and found the crimes "kind of scary," she also said that she

had "forgotten about it," that she had no opinion about Creque's guilt or

innocence, and that she could set aside anything she had heard and

consider only the evidence. (R. 915-21.) Likewise, although Juror R.R.

revealed during voir dire that her nephew was a crime victim and had

been shot, she also stated that she could be a fair and impartial juror and

consider only the evidence presented during the trial. (R. 484, 634-36.)

In addition, Creque's counsel asked the prospective jurors twice if any of

them who had been a crime victim or had a family member or close friend

71 CR-2023-0654

who had been a crime victim would "in any way hold that against

Creque," and no one responded. (R. 583-84.) "As a result, a challenge to

the juror for cause on the ground that they were biased against [Creque]

would have been meritless." Coan, 322 So. 3d at 560. " 'Counsel is not

ineffective for failing to raise a baseless claim.' " Id. (quoting Washington

v. State, 95 So. 3d 26, 71 (Ala. Crim. App. 2012)). See also Lee v. State,

44 So. 3d 1145, 1164 (Ala. Crim. App. 2009) (holding that Lee was not

entitled to relief based on his claims of ineffective assistance of counsel

regarding failure to challenge jurors because "Lee did not allege that any

of the jurors were actually biased against him and … the record of the

voir dire examination show[s] that the three jurors indicated that they

had no bias against Lee nor were they biased in favor of the State").

Furthermore, on direct appeal, this Court held that "[Juror] R.R.'s

answers in voir dire were not dishonest or misleading, and they did not

indicate any bias in favor of the prosecution." Creque, 272 So. 3d at 690

(emphasis added). (See also R. 484, 583-84, 634-36.) Although we applied

a plain-error review to the claim regarding Juror R.R.'s alleged bias in

favor of the State on direct appeal, Creque pleaded no facts to show that

this was the "rare case" in which application of plain-error review on the

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underlying substantive claim and an analysis of the prejudice prong of

Strickland would yield different results. See, e.g., Ex parte Taylor, 10

So. 3d at 1078 and White, 343 So. 3d at 1183. See also Stallworth v.

State, 171 So. 3d 53, 84-85 (Ala. Crim. App. 2013) (" 'The attorney's

actions during voir dire are considered to be a matter of trial strategy. A

decision regarding trial tactics cannot be the basis for a claim of

ineffective assistance of counsel unless counsel's tactics are shown to be

"so ill chosen that it permeates the entire trial with obvious

unfairness." ' " (quoting Teague v. Scott, 60 F.3d 1167, 1172 (5th

Cir.1995), quoting in turn, Garland v. Maggio, 717 F.2d 199, 206 (5th

Cir.1983))).

In sum, Creque's contentions in his petition regarding trial

counsel's failure to "adequately" question and "strike" Jurors K.T. and

R.R. were waived, insufficiently pleaded, and without merit based on the

record. The circuit court thus properly summarily dismissed Creque's

claims that counsel provided ineffective assistance during voir dire.

C. Failure to "Adequately" Address Juror R.R.'s Misconduct

Creque contends that trial counsel "did nothing to effectively

respond to [Juror R.R.'s] obvious misconduct." (Creque's brief, p. 56.)

73 CR-2023-0654

Specifically, once trial counsel found out about Juror R.R.'s speaking to

Det. Archer in a retail store during the penalty-phase weekend break,

Creque contends that counsel was ineffective for failing to move for a

mistrial, strike R.R., "inquire whether R.R.'s extrajudicial contact had

infected other jurors," and "ask R.R. if she could follow the Court's

instructions or request that the Court remind R.R. that she had violated

the Court's instructions." (Creque's brief, p. 56.) This allegation is both

insufficiently pleaded and without merit.

Upon seeing Det. Archer, Juror R.R. told him that "you all did a

great job on that case" and "[h]aving gone through that before myself, I

know how hard it is." (R. 2759.) This was brought to the parties'

attention and addressed by the trial court outside the presence of the

other jurors. When questioned under oath and asked what she was

referring to, Juror R.R. responded that she had been on jury duty before

and also that her nephew "had been in a murder case." (R. 2764.) "The

trial court and Creque questioned [Det.] Archer and [Juror] R.R. under

oath before the trial resumed." Creque, 272 So. 3d at 688. See also id. at

691-93. Juror R.R. emphatically testified that she had not discussed any

of these things with anyone at any time. The trial court also instructed

74 CR-2023-0654

Juror R.R. to not "discuss this with the other jurors." (R. 2768.) "[J]urors

are presumed to follow the trial court's instructions." Pettibone v. State,

91 So. 3d 94, 115 (Ala. Crim. App. 2011).

First, Creque did not meet his burden of pleading his claim with

specific facts that, if true, would entitle him to an evidentiary hearing on

this claim, much less a new trial. Creque never alleges that Juror R.R.

was biased in favor of the State and against him. Rather, he relies on the

same facts already considered during the trial and on direct appeal to

allege that Juror R.R. had "obvious affection" for the State. (C. 485.)

Creque merely speculates that Juror R.R. was biased, that her

experiences as a victim's family member, and that her contact with Det.

Archer "might have impacted other jurors," and that "there was no

guarantee [she] could actually follow the penalty-phase jury

instructions." (Creque's brief p. 57.) (See also C. 487.) "Speculation is not

sufficient to satisfy a Rule 32 petitioner's burden of pleading." Mashburn

v. State, 148 So. 3d at 1125. Creque fails to allege any jurors with whom

Juror R.R. might have "discussed her experience as a victim's family

member or her lingering questions" or biases. (C. 487.) And, although

he contends that trial counsel were ineffective for not asking Juror R.R.

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if she could follow instructions and for not inquiring whether other jurors

were affected, Creque never contends what the answers to those

questions would have been. See, e.g., A.G. v. State, 989 So. 2d at 1173

(holding that ineffective-assistance claims were insufficiently pleaded

when petitioner did not plead what questions should have been asked or

what the response to those questions would have been). Creque also

makes no allegation regarding how "jury dynamics would have been

different" if Juror R.R. had been "properly admonished." (Creque's brief,

p. 58.) In fact, the record shows that she was instructed not to discuss

with the other jurors anything about her conversation with Det. Archer

or her questioning by the court. (R. 2768.) Finally, Creque fails to allege

any facts that show that Juror R.R. had any actual bias, as opposed to

normal sympathy, for the victim's family, which is not disqualifying.

Indeed, this Court has held that there was no error in a trial court's

denying a motion for a mistrial when one of the jurors, unsolicited,

walked over to a witness, the capital-murder victim's granddaughter, and

stated that she was "so sorry." Johnson v. State, 684 So. 2d 629, 635-37

(Ala. Crim. App. 1994). More specifically, we held that the trial court did

not abuse its discretion because "[t]here [wa]s no indication that the juror

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discussed any of the particulars of the case or that the appellant suffered

any prejudice by this contact." See also Ex parte Killingsworth, 82 So.

3d 761, 764 (Ala. 2010) (Even "[t]he fact that a prospective juror knows

the victim or members of the victim's family does not automatically

disqualify the prospective juror for cause."). Like the juror's statement

in Johnson, Juror R.R.'s statements merely "indicate sympathy for the

victim rather than a belief the appellant committed the offense" or,

because Juror R.R.'s statement was made after the guilt determination,

a belief that Creque should receive the death penalty. 684 So. 2d at 636.

In fact, Det. Archer testified: "At no time were the facts of the case or any

testimony mentioned or discussed. There was no talk about anything …

presented during the sentencing phase. There was no mention … of the

jury deliberations" other than questions about a peripheral, irrelevant

question about what happened to a Krystal employee who was never

mentioned at trial but whose name was on a receipt. (R. 2761, 2765-66.)

Moreover, the underlying argument -- that Juror R.R. "was biased

and initiated contact with the lead investigator, [Det.] Archer, during the

trial, and that she was permitted to serve on the jury in violation of

Creque's state and federal constitutional rights" -- was rejected on direct

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appeal. Creque, 272 So. 3d at 688. Creque specifically argued on appeal

"that the trial court's failure to remove [R.R.] from the jury" or "even

inquire whether she could be fair and impartial" requires reversal. Id. at

690. This Court reviewed those arguments for "plain error because,

although Creque made a motion for a mistrial after the matter was raised

in the trial court, he raised a claim other than the one he now raises" and

because "he did not request that R.R. be removed from the jury." Id.6 In

rejecting Creque's claim on direct appeal, this Court explained that:

"the effect of the misconduct was confined to R.R., the juror who committed the misconduct. It is undisputed that R.R. told none of the other members of the jury of her conversation with [Det.] Archer. Likewise, there is no support for Creque's belated claim that R.R.'s comments to [Det.] Archer involved the substance of the penalty-phase case. There is no basis on which to find plain error in the trial court's denial of the motion for a mistrial and no basis for the trial court to have sua sponte removed R.R. from the jury."

Id. at 694-95 (emphasis added). This Court held that "[n]othing in R.R.'s

testimony or in [Det.] Archer's testimony supports Creque's argument

6"Creque's only objection at trial was made after [Det.] Archer testified, and that objection was made 'on the grounds that apparently the jury felt like they didn't get all the evidence.' " Creque, 272 So. 3d at 694. "Therefore, his claim [on direct appeal] -- that R.R. was biased" and should have been removed or a mistrial granted -- was "subject to review for plain error only." Id. 78 CR-2023-0654

that R.R. was biased in favor of the State or that her conversation with

[Det.] Archer had any influence on R.R.'s verdict or the verdict of any

other juror." Id. at 696. And, Creque has pleaded no additional facts to

show this to be the "rare case" in which prejudice would be found under

the Strickland test even though this Court already held that there was

no plain error as to the underlying substantive claim. See, e.g., Ex parte

Taylor, 10 So. 3d at 1078. Creque's contentions are thus meritless

because " '[c]ounsel is not ineffective for failing to raise a baseless claim.' "

Coan, 322 So. 3d at 560 (quoting Washington v. State, 95 So. 3d at 71).

In sum, Creque's contentions were insufficiently pleaded and

without merit. Thus, the circuit court properly summarily dismissed this

claim.

III. Ineffective Assistance During Penalty and Sentencing Phases

Creque argues that his trial counsel were ineffective during the

penalty and sentencing phases "[b]y failing to discover or effectively

marshal a wealth of mitigation evidence." (Creque's brief, p. 59.) Creque

also argues that the circuit court erred by finding that the mitigation

evidence he alleged should have been discovered and presented was

cumulative. Creque then argues that "the record is replete with

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additional deficiencies" during the penalty and sentencing phases.

(Creque's brief, p. 74.) Each of those claims were insufficiently pleaded,

without merit, or both.

A. Counsel Failed to Present "Significant" Mitigation Evidence

In addressing Creque's multiple penalty-phase claims regarding

trial counsel's alleged failure to present additional mitigation evidence,

we consider the following well-settled legal principles:

" '[C]ounsel's obligation is to conduct a "substantial investigation into each of the plausible lines of defense." ' Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999) (quoting Strickland, 466 U.S. at 681). ' "A substantial investigation is just what the term implies; it does not demand that counsel discover every shred of evidence but that a reasonable inquiry into all plausible defenses be made." ' Id. (quoting Strickland, 466 U.S. at 686). Moreover,

" ' "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." '

"Id. (quoting Strickland, 466 U.S. at 691)."

Belcher v. State, ____ So. 3d at ___.

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"Likewise, a distinction must be made ' " ' "between counsel's complete failure to conduct a mitigation investigation, where we are likely to find deficient performance, and counsel's failure to conduct an adequate investigation where the presumption of reasonable performance is more difficult to overcome." ' " ' Marshall v. State, 182 So. 3d 573, 595 (Ala. Crim. App. 2014) (quoting McWhorter v. State, 142 So. 3d 1195, 1245 (Ala. Crim. App. 2011), quoting in turn Ray v. State, 80 So. 3d 965, 984 (Ala. Crim. App. 2011), quoting in turn Beuke v. Houk, 537 F.3d 618, 643 (6th Cir. 2008)). ' " ' " A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance." ' " ' Id. at 596 (citations omitted). And, counsel's investigation ' " ' "must not be evaluated with the benefit of hindsight but accorded a strong presumption of reasonableness." ' " ' Id. (citations omitted). We also note that ' " ' "[c]ounsel is not required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel's strategy. Counsel must be permitted to weed out some arguments to stress others and advocate effectively." ' " ' McWhorter, 142 So. 3d at 1246 (citations omitted)."

In addition, we have recognized that, in cases that do " ' " 'not involve

a failure to investigate but, rather, petitioner's dissatisfaction with the

degree of his attorney's investigation, the presumption of reasonableness

imposed by Strickland will be hard to overcome.' " ' " McWhorter, 142 So.

3d at 1245 (citations omitted; emphasis added). Moreover,

" ' "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually

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based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." ' "

Id. at 1230-31 (quoting Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim.

App. 1999), quoting in turn, Strickland, 466 U.S. at 691).

"Finally,

" ' "[w]hether trial counsel were ineffective for not adequately investigating and presenting mitigating evidence ' "turns upon various factors, including the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented." ' McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017) (quoting Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013))."

" 'Woodward v. State, 276 So. 3d 713, 773-74 (Ala. Crim. App. 2018).'

"State v. Mack, [Ms. CR-2023-0284, Dec. 20, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024). Thus, 'when evaluating any case of ineffective assistance of counsel related to the penalty phase of a capital-murder trial, we must consider what counsel did, in fact, present in the way of mitigation.' Mack, ___ So. 3d at ___. ' " 'Although petitioner's claim is that his trial counsel should have done something more, we first look at what the lawyer did in fact.' " ' Id. at ___ (quoting Ray [v. State], 80 So. 3d [965,] 979 [(Ala. Crim. App. 2011)], quoting

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in turn Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000))."

On appeal, as in his petition, Creque alleges that "counsel failed to

effectively develop [mitigating] evidence." (Creque's brief, p. 60.) Creque

then proceeds to list the following evidence that he believes should have

been presented during the penalty phase: (1) Creque's mother's "physical,

verbal, and psychological abuse of her children," particularly "graphic

stories" that she beat her children with a bat and withheld food (Creque's

brief p. 61); (2) Creque's mother's "cocaine addiction," as well as her

spending money the family needed for necessities on drugs, her pulling

Creque out of elementary school, her witnessing the drowning death of

her sister, and her "family's history of mental illness" (Creque's brief, p.

62); (3) Creque's "deep depression" following his father's death (Creque's

brief, p. 63); (4) the family's loss of "income and stability" after Creque's

father died (Creque's brief, p. 63); (5) "unbearable" financial pressures

leading up to the crimes because Creque had a "young family" to support

and Brittany Orr's "postpartum depression … prevented her from

working" (Creque's brief, pp. 64-65); (6) "Creque may have been sexually

abused" (Creque's brief p. 65 (emphasis added)); and (7) "[t]here were

83 CR-2023-0654

many family members willing and able to testify who could have provided

specific, anecdotal stories about Creque's sweet and hardworking nature

as a child" but "[n]one were called." (Creque's brief, pp. 65-66.)

In summarily dismissing Creque's petition, the circuit court found

these claims to be insufficiently pleaded, particularly considering that

the additional facts pleaded were "cumulative" to the evidence that was

presented at trial. (C. 781-83.) The circuit court also explained that the

facts pleaded did "not show that trial counsel fell below an objective

standard of reasonableness or that [he] was prejudiced," that "the

outcome of his case would have been different had trial counsel offered

this evidence/witnesses," or even "that the witnesses would have been

present and available during the trial." (R. 781-83.) On appeal, "[Creque]

does not address the circuit court's finding that his claim of ineffective

assistance of counsel in relation to [mitigating evidence] was

insufficiently pleaded." Wilson v. State, [Ms. CR-21-0109, Aug. 22, 2025]

___ So. 3d ___, ___ (Ala. Crim. App. 2025). Creque's only contention is

the bare allegation that "the court misapplied the prejudice standard by

failing to appreciate how the omitted mitigation evidence could have

rebutted the State's theory of the case and by declining to consider the

84 CR-2023-0654

evidence cumulatively." (Creque's brief, p. 59.) In addition, Creque cites

only two legal authorities in this section of his brief for general

propositions of law.7

Regardless of Creque's failure to address certain aspects of the trial

court's order in its brief to this Court, the record supports the circuit

court's finding that Creque failed to sufficiently plead facts that, if true,

suggest that counsel's performance was deficient, much less that he was

7Creque cites Wiggins v. Smith, 539 U.S. 510, 535 (2003), solely for

the proposition that "defendants who commit criminal acts that are attributable to a disadvantaged background … may be less culpable than defendants who have no such excuse." However, trial counsel did present evidence of Creque's disadvantaged background, just not as much evidence as postconviction counsel, using hindsight, would have liked to have presented. Creque also cites Collier v. Turpin, 177 F. 3d 1184, 1202 (11th Cir. 1999), for the proposition that counsel is constitutionally ineffective for giving "the impression that the witnesses knew little or nothing about [the defendant]." Again, Creque does not explain how what occurred at his trial was similar to what occurred in Collier, particularly when 10 witnesses testified in that case with "minimal" testimony and a "number of witnesses" testified only as to "Collier's reputation for truth and veracity -- a matter wholly irrelevant." Id. at 1201. Creque's trial counsel, however, presented the testimony of two corrections officers, a former coworker, a former boss, a mitigation expert (who had conducted extensive investigation of his history through family and friends and had obtained various school and medical records), a ministry coordinator and instructor, and Creque's stepfather, as well as the testimony of Creque himself. (R. 2661-2739, 27773-2839, 2847-2859.) And, the testimony provided multiple, significant mitigating circumstances. 85 CR-2023-0654

prejudiced by his counsel's performance, particularly in light of the record

and the mitigating evidence that counsel presented during the penalty

and sentencing phases of Creque's trial. In short, as we noted on direct

appeal:

"Creque presented a variety of evidence offered as support for the imposition of a sentence of life imprisonment without the possibility of parole, including: testimony about his chaotic upbringing that included physical and emotional abuse; evidence about his learning disabilities, educational deficiencies, and the lack of appropriate parental role models; evidence of his chronic abuse of drugs and alcohol; and evidence that he had sustained numerous concussions and other physical injuries during his childhood."

Creque, 272 So. 3d at 674 (emphasis added).

First, Creque contends that trial counsel "failed to present any

evidence about [his mother's] physical, verbal, and psychological abuse of

her children," specifically about her withholding food and beating them

with a bat. (Creque's brief, pp. 61-62.) However, the record reveals that

evidence of Creque's mother's "physical, verbal, and psychological abuse"

was presented to the jury. Specifically, Cheri Hodson, an experienced

mitigation expert, was hired by trial counsel to investigate, collect

records, and interview Creque and family members and friends in order

to compile a "life history" of Creque. (TR. 2679-84.) Hodson was receiving

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records that she had requested at least as early as June 4, 2013, (STR.

1810), well before the penalty phase began on October 11, 2013. Indeed,

Hodson mentioned her multiple attempts "over two years" to interview

Creque's mother. (TR. 2795.) Although Hodson attempted to contact

Creque's mother "on multiple occasions," she was successful in meeting

with her only once for "any length of time," and that was for only "30

minutes." (TR. 2687.) Hodson testified that Creque's mother repeatedly

avoided her and even "left the state and changed her phone number."

(TR. 2687, 2701-02, 2792.) Hodson also testified that she attempted to

contact Creque's sister and "was told she was unavailable" and in South

Carolina, but "she was actually in an apartment in Augusta, Georgia

with her mother." (TR. 2687.) And, once, when Hodson called Creque's

sister's phone, his mother answered. Hodson also testified that Creque's

mother was not even in the courtroom for her son's penalty phase.

Hodson was able to meet with a dozen other family members and friends,

including Creque's grandmother and cousins and his stepfather,

Dewayne Carrion. (TR. 2687-88, 2793.) Hodson testified that she

learned that Creque's mother constantly "belittled" Creque, calling him

"stupid, retarded" and saying that he "couldn't do anything right" in his

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mother's eyes and "no matter what he did it was not enough for her." (TR.

2689, 2698, 2728.) She "was not supportive of [Creque's] grief after the

death of his father." (TR. 2698.) Creque's mother "never stayed in one

place very long" and was always leaving him, sometimes for "months,"

with other people, including people not related to Creque. (TR. 2689-90,

2693-94, 2788.) Creque's father was in such bad health that Creque

"became his primary caretaker at the age of eight, and [he] and his father

shared a bedroom" because Creque's mother "needed her space." (TR.

2692, 2706.) Testimony at trial revealed that Creque's mother smoked

marijuana while pregnant with Creque and that she began smoking it

with him when he was a young teenager and even "sent him out to

procure marijuana for her" when he was only 14 or 15 years old. (TR.

2695-96, 2698, 2714.) She removed Creque from school in the fifth grade.

Creque visited doctors approximately 90 times between 1995 and 2007,

including 17 visits in 1995 and 17 visits in 1999, according to medical

records. (TR. 2703-05.) Creque's mother even kept the family

refrigerator "locked." (TR. 2706.) As a child, Creque was physically

punished "with a coat hanger, extension cord, whatever." (TR. 2787.)

Creque's parents also had "violent arguments." (TR. 2692.)

88 CR-2023-0654

Leading up to the crimes, Creque's mother was critical of his

parenting. On August 23, 2011, his mother asked him to buy her bubble

gum, but he bought the "wrong" kind, and she berated and belittled him

for it. (TR. 2724, 2730-31.) Creque's stepfather testified that she was

"very angry" and called Creque "stupid," "incompetent," and "retarded."

(TR. 2829-30.) Creque testified that his mother berating him the day

before the crimes "caused [him] to not be rationally thinking." (TR. 2858.)

In addition, multiple witnesses, including Creque, testified that his

mother did not even visit him in jail the first year. Creque also testified

that there were times that he would call his mother, and she would not

answer. (TR. 2837, 2851-52, 2874.)

The jury heard ample evidence regarding Creque's mother and her

abuse of Creque, both as a child and the day before the crimes. The

circuit court did not err in finding additional evidence that she had

allegedly beaten her children with a bat, in addition to the other

inappropriate and cruel objects that were testified to at trial, would have

been anything but cumulative. See, e.g., Peraita v. State, 386 So. 3d 799,

835 (Ala. Crim. App. 2021) (noting that "counsel is not ineffective for

failing to present cumulative evidence").

89 CR-2023-0654

Second, the additional evidence indicating that Creque's mother

used cocaine in addition to marijuana would have merely been

cumulative of the evidence of her drug abuse. Testimony was presented

about Creque's family history of criminal behavior and substance abuse.

(TR. 2691, 2785.) In addition, Creque pleaded no facts that would

indicate that counsel's failure to offer evidence of his mother's use of

cocaine in addition to marijuana would have, to a reasonable probability,

resulted in a different outcome, particularly considering the evidence

that she smoked marijuana while pregnant with Creque and with him

when he was a young teenager, as well as "sent him out to procure

marijuana for her" when he was only 14 or 15 years old. (TR. 2695-96,

2698, 2714.) And, Creque's contentions that counsel should have

presented evidence regarding his mother "and her family's history of

mental illness" and the "drowning death of her sister" are insufficiently

pleaded because he has never explained how that information about his

mother would mitigate his behavior. (Creque's brief, p. 62.) Certainly,

the ways Creque's mother failed him are mitigating (and were, in fact,

presented to the jury during the penalty phase of Creque's capital-

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murder trial), but facts that might explain her failings are not relevant

to Creque's behavior and sentencing.

Third, that Creque was in "the depths of … grief" over his father's

death is cumulative to the testimony that Creque was "most affected by

[his father's] death" and that Creque's mother "was not supportive of

[Creque's] grief after the death of his father." (TR. 2697-98.) In addition,

there was testimony that Creque's father died when he was 17 years old

(about 4 years before the crimes) and that Creque moved out and was "on

his own" after that. (TR. 2693, 2788.) Additional details regarding

Creque's grief or his financial condition after his father's death were, as

the circuit court found, cumulative. Again, "counsel is not ineffective for

failing to present cumulative evidence." Peraita, 386 So. 3d at 835.

Fourth, Creque's contentions regarding trial counsel's alleged

failure to present evidence that his family had no financial support after

his father died and that he was financially responsible for his mother are

insufficiently pleaded and refuted by the record. There was ample

testimony that Creque was "on his own" at 17 years of age after his father

died, as well as that Creque was working 2 jobs and was not sleeping

while taking care of his girlfriend and child around the time of the crimes.

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(TR. 2712, 2721, 2727, 2788, 2797.) Moreover, Creque's stepfather

testified during the penalty phase that Creque was the "sole provider" of

his own family but that he did not help support his mother, refuting

Creque's allegation in his petition that the burden of supporting his

entire family fell on Creque. (TR. 2825-26.)

Fifth, that Creque's financial pressures leading up to the offenses

were "unbearable" was also cumulative to the evidence that was

presented. There was ample evidence presented indicating that Creque,

who did not even attend school past the fifth grade (and was purportedly

homeschooled by his mother after that), was "on his own" to support

himself when he was 17 years old and worked 2 jobs, as well as taking

care of both his girlfriend and his child. (TR. 2712, 2721, 2727, 2788,

2797.) Testimony during the penalty phase was that, in addition to

working two jobs, Creque got up with his baby, made Brittany Orr

breakfast, and took care of Brittany Orr and their baby. (TR. 2721.) In

addition, Brittany often asked Creque's family to care for Creque's child,

and Creque's mother believed Brittany was a "bad mother." (TR. 2712.)

Considering what was presented, the specific allegations that Brittany

could not work because of "postpartum depression" or that the family had

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"car trouble" around the time of the crimes, even if true, do not suggest

deficient performance, much less prejudice. There is simply no

suggestion that presenting additional details would have, to a reasonable

probability, resulted in a different outcome.

Sixth, Creque contends that counsel was constitutionally

ineffective because "[t]he jury never heard that [he] may have been

sexually abused." (Creque's brief, p. 65 (emphasis added).) In his

petition, Creque pleaded, as Dr. Carol Walker testified during the

sentencing phase, that his bed-wetting and encopresis as a child and into

his adolescence "could be a red flag for sexual abuse." (C. 494 (emphasis

added).) Likewise, Creque pleaded that "Hodson could have informed the

jury that these factors may be indicators of abuse." (C. 502 (emphasis

added).) Clearly, Creque's contention on appeal, as in his petition, is

based on nothing more than speculation. Creque has never alleged that

he was, in fact, sexually abused by his father or anyone else for that

matter. In short, " '[s]peculation is not sufficient to satisfy a Rule 32

petitioner's burden of pleading.' " Brooks v. State, 340 So. 3d 410, 474

(Ala. Crim. App. 2020) (quoting Mashburn, 148 So. 3d at 1125).

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Accordingly, the circuit court did not err when it summarily dismissed

this speculative claim.

Moreover, such information was and is within Creque's own

knowledge and could have been told any of the numerous times that

Creque met with counsel, the mitigation expert Hodson, or the

neuropsychologist Dr. Walker. See, e.g., Washington v. State, 95 So. 3d

26, 52 (Ala. Crim. App. 2012) (recognizing that " '[c]ounsel's actions are

usually based, quite properly, on … information supplied by the

defendant' " (quoting Strickland, 466 U.S. at 691)). Accordingly, Creque

did not sufficiently plead this contention that counsel was ineffective for

not presenting the "possibility" that he was sexually abused as a child.

Seventh, Creque contends that counsel should have called multiple

witnesses to testify about "specific anecdotal stories about Creque's sweet

and hardworking nature as a child." (Creque's brief, p. 66.) However,

not only did Creque not explain how those stories should have been

discovered or that they were known and simply not presented to the jury,

but they were, like the other mitigating evidence, cumulative to the

testimony that was presented during the penalty phase. According to

Creque's family and friends, as a child Creque was "very helpful,"

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"mannerly," a "very kind, "soft-spoken child," "loving, "sensitive," "most

affected by [his father's] death," (TR. 2690, 2697.) In addition, counsel

called a former coworker, a former employer, and two corrections officers

to testify on Creque's behalf during the penalty phase, and they all

testified that Creque was very polite, punctual, hard-working, respectful,

cooperative, and even "a man of character." (TR. 2663, 2665, 2670-71,

2673, 2676.) His coworker and former employer were shocked when

Creque was charged with the crimes. (TR. 2673, 2676.) In addition, a

minister who taught faith-based classes at the jail testified that Creque

had taken multiple classes and was "very respectful" and did a "very good

job." (R. 2814-2815.) Counsel used this information in closing to argue

that the crimes were an "aberration" and that Creque was a good person

both before and after the crimes and, thus, "redeemable" and not

deserving of the death penalty.

In sum, counsel is not tasked with locating every witness who could

provide an "anecdote" about a defendant's life. Counsel is

constitutionally required to conduct a reasonable investigation and

present that which is reasonably discovered through witnesses who are

available and willing to testify. Considering the extensive mitigation

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investigation conducted by Hodson and the extensive evidence presented

at trial, we agree with the circuit court that Creque did not sufficiently

plead this claim that counsel was ineffective for not presenting more (or

more persuasive) mitigation evidence. There is nothing in Creque's

petition, particularly considering the record, to suggest that, if this

additional information had been presented, Creque would not have been

sentenced to death. The omission of the mitigation evidence that Creque

contends should have been presented does not indicate constitutionally

ineffective assistance. Thus, "there is no individual or cumulative effect"

of the pleaded mitigating facts and circumstances. (C. 836 (citing Taylor

v. State, 157 So. 3d 131, 140 (Ala. Crim. App. 2010) (recognizing that no

appellate court in Alabama had applied a cumulative-effect analysis to

an ineffective-assistance-of-counsel claim but that, "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")).)

Furthermore, " ' " '[w]hen a defendant challenges a death sentence

…, the question is whether there is a reasonable probability that, absent

the errors, the sentencer -- including an appellate court, to the extent it

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independently reweighs the evidence -- would have concluded that the

balance of aggravating and mitigating circumstances did not warrant

death.' " ' " Stanley v. State, 335 So. 3d 1, 55 (Ala. Crim. App. 2020)

(citations omitted). " ' " 'To assess that probability, we consider the

totality of the available mitigation evidence -- both that adduced at trial,

and the evidence adduced in the habeas proceeding -- and reweigh it

against the evidence in aggravation.' " ' " Id. at 55-56 (citations

omitted). We also " ' " 'consider the strength of the evidence in deciding

whether the Strickland prejudice prong has been satisfied.' " ' " Id. at 56

(citations omitted). Considering the evidence Creque contends counsel

should have presented in mitigation, what trial counsel, in fact,

presented at his trial, the overwhelming strength of the evidence (which

included Creque's own statements before trial that he shot and killed

both Graff and Aguilar, and his testimony at trial that he shot and killed

Graff), and the corroborating evidence, and reweighing the evidence in

mitigation against the evidence in aggravation, we hold that the circuit

court properly dismissed this claim because it was both insufficiently

pleaded and without merit. There is no reasonable probability that the

additional mitigation evidence proffered by Creque in his petition would

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have resulted in his receiving a different sentence. Although Creque

testified that he was remorseful and apologized to the victims' families

and the jury for his actions (TR. 2853), the mitigation evidence he now

faults counsel for not discovering and presenting could not overcome the

ample evidence against him and the callous nature in which he robbed

and killed his coworkers, whom he knew and worked with, for a

"relatively insignificant amount of money." (Creque's brief, p. 85.)

We further note that the record shows that, to the extent that

additional mitigating evidence was not presented, the record indicates

that counsel was prevented from presenting it by Creque himself.

Counsel cannot be faulted that Creque clearly was protecting his mother

and sister and did not want them to testify at trial. Trial counsel, in fact,

put on the record that they were not calling Creque's mother or sister to

testify on his behalf during the penalty phase because, as Creque himself

told the court, he had "specifically instructed [counsel] not to call [either

one] as a witness." (R. 2840, 2845.) Creque also appeared not to want to

testify about his childhood himself, testifying, when asked, that Hodson's

testimony was true "as far as I can remember." (R. 2848.) " 'What

investigation decisions are reasonable depends critically on' " the

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" 'defendant's own statements or actions.' " Broadnax v. State, 130 So. 3d

1232, 1248 (Ala. Crim. App. 2013) (quoting Strickland, 466 U.S. at 691).

Creque has "pleaded no facts to explain how, if the jury had known this

additional information [pleaded in his petition], there is a reasonable

probability that [he] would not have been … sentenced to death."

Belcher, ___ So. 3d at ___. Indeed, the facts pleaded do not indicate that

no reasonable lawyer or mitigation expert would have failed to discover

them or procure additional testimony, particularly when Creque himself

did not want his mother or sister to testify. Moreover, considering the

testimony that was presented, "[w]e are confident that [the additional

mitigating evidence] would have had no impact on the penalty phase

proceedings." Lee v. State, 44 So. 3d 1145, 1161 (Ala. Crim. App. 2009)

(affirming the summary dismissal of Lee's postconviction petition (citing

Wiggins v. Smith, 539 U.S. 510 (2003))).

B. The Circuit Court Erroneously Found the Evidence Cumulative

Creque next contends that the circuit court rejected his ineffective-

assistance of counsel claims regarding the penalty and sentencing phases

of his capital-murder trial by erroneously finding the mitigation evidence

pleaded in his petition was cumulative to the mitigation evidence that

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was presented. However, as explained above, the record amply supports

the circuit court's finding that the additional mitigation evidence Creque

pleaded in his petition is, in fact, cumulative.

C. Additional Penalty-Phase Deficiencies

Creque also alleges a list of "errors" that he says rendered trial

counsel constitutionally ineffective during the penalty and sentencing

phases of his capital-murder trial, including counsel's failing to object to

errors he alleged the trial court committed. Specifically, Creque contends

that (1) counsel "did not perform an adequate investigation" and "did not

visit [him] between the guilt and penalty phases" (Creque's brief, p. 74);

counsel hired the mitigation expert, Hodson, "only six months before

trial" and hired Dr. Walker after the penalty phase (Creque's brief, p.

76); and counsel failed to hire Dr. Lopez (instead of Dr. Kalin) who he

says "would have illuminated Creque's" ability to appreciate his conduct

and conform to the law (Creque's brief, p. 77). Creque also contends that

(2) counsel failed to introduce "some" mitigation evidence that "was

known to counsel" and failed to "adequately prepare any defense

witnesses for their testimony" (Creque's brief p. 78); counsel was

"unprepared to get Hodson's exhibits into evidence" (Creque's brief, p. 79-

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81); "counsel's opening statement was less than four pages" and "had no

story, theory, or theme" (Creque's brief, p. 81); and counsel's closing

argument "listed facts but rarely explained why they supported a life

sentence and advanced no clear mitigation theory." (Creque's brief, p.

82.) Creque then contends that (3) counsel "failed to present any evidence

explaining why mitigation was warranted based on [his] relatively young

age and reduced mental capacity" (Creque's brief, p. 83). Creque last

contends that (4) counsel failed to object to the trial court's asking Dr.

Walker whether her testing showed that Creque could not understand

right from wrong and that counsel was constitutionally ineffective for not

making another closing argument at the sentencing hearing before the

trial court. (Creque's brief, p. 87.)

Creque ends his summation of those myriad errors with the one-

sentence allegation that "[e]ach of these errors also supports [his] claims

for Rule 32 relief, and the Circuit Court erred in dismissing them."

(Creque's brief, p. 91.) However, Creque does not explain why the circuit

court's summary dismissal of this claim as insufficiently pleaded was

erroneous. Perhaps, this is because the circuit court did not err in

summarily dismissing Creque's contentions as insufficiently pleaded. As

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the circuit court found, Creque pleaded no facts to indicate that trial

counsel's performance was deficient or that he was prejudiced by that

performance.

The insufficiency of Creque's pleadings regarding his contentions

are even more clear when considered with the record. For example,

Creque alleges on appeal, as in his petition, that "trial counsel only met

with him six times … before trial, with none of the meetings lasting more

than 90 minutes."8 (Creque’s brief, p. 12 (citing C. 416).) The inmate

logs, however, show seven, not six “ATTY” events from April 9, 2013, to

October 6, 2013. (STR. 1869.) In addition, the log notes show Creque's

location as being in the "Attorney's Room" numerous times between

November 1, 2012, and October 7, 2013. (STR. 1879-87.) Several of these

visits were approximately two hours long. (See, e.g., STR. 1885 (on

September 24 and 25, 2013, respectively, Creque was in the "attorney’s

room" from 15:19 to 17:42 and from 16:29 to 18:22 before returning to his

cell), STR. 1886 (on September 29, 2013, Creque was in the "attorney’s

8Notably, in his original petition (filed June 9, 2021), Creque alleged

that trial counsel met with him six times and that "[e]ach visit lasted no more than 1.5 hours." (C. 237.)

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room" from 17:07 to 19:04 before returning to his cell), STR. 1886 (on

October 6, 2013, Creque was in the "attorney’s room" from 15:51-17:52

before returning to his cell), STR. 1887 (on October 7, 2013, Creque was

in the "attorney's room" from 17:25 to 18:39.) In addition, the mitigation

expert, Hodson, had been working on Creque's mitigation evidence in

preparation for his penalty phase at least as early as June 4, 2013 (STR.

1810), well before the penalty phase began on October 11, 2013. And,

Hodson spent "a good couple of hours" with Creque the first time they

met and "an hour or so" the second time she met with Creque, in addition

to talking with family and friends and gathering records. (TR. 2713.)

Hodson also mentioned her multiple attempts "over two years" to

interview Creque's mother. (TR. 2795.) Considering the record, Creque's

contention that counsel did not visit him between the guilt and penalty

phases does not suggest that counsel's penalty-phase performance was

deficient, much less that it prejudiced him.

Creque also alleges on appeal and in his petition that trial counsel

should have prepared to get Hodson's various exhibits into evidence, but

he mentions only the "social history report" in his petition and baldly

contends that counsel should have gotten it admitted without explaining

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how counsel should have done so and that he would not have been

sentenced to death if it had been admitted without explaining why. (C.

500, 503.) Moreover, this Court reviewed Creque's arguments on direct

appeal that this report, and other exhibits prepared by Hodson, should

have been admitted during the penalty phase and held that this report

(and others) was neither relevant nor probative and that there was no

error in the trial court's exclusion of it. Creque, 272 So. 3d at 718. Thus,

" '[b]ecause the substantive claim underling the claim of ineffective

assistance of counsel has no merit, counsel could not be ineffective for

failing to raise this issue.' " McMillan v. State, 258 So. 3d 1154, 1191

(Ala. Crim. App. 2017) (quoting Lee v. State, 44 So. 3d 1145, 1173 (Ala.

Crim. App. 2009)).

Counsel's closing argument provides another example. Contrary to

Creque's postconviction contentions, trial counsel's penalty-phase closing

argument was extensive and listed the following mitigating

circumstances for which counsel had presented evidence during the

penalty phase: Creque was a "mannerly young man," a "hard worker," a

"model prisoner," and a "good student" in jail; Creque "had a pretty

crappy childhood," which included receiving a "poor education" and

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lacking "parental involvement," living a "vagabond lifestyle," and using

drugs with his mother and procuring drugs for her; Creque's mother was

verbally, emotionally, and physically abusive, specifically beating him

with a "coat hanger" and an "extension cord" and calling him "stupid" and

"retarded," which resulted in "disastrous long-term effects"; Creque

suffered from "health problems" and his mother had "health problems";

Creque had a significant substance-abuse problem that began when he

was a child; Creque had been "on his own from 17 years old and had a

baby at 21 and a girlfriend"; Creque suffered from lack of sleep and used

a substantial amount of drugs leading up to the crimes; Creque "had just

turned 21" at the time of the crimes; this was Creque's first criminal

offense; Creque was remorseful; and Creque was deserving of the jury's

"mercy." (R. 2903-12.) Particularly considering the argument that was

given, Creque pleaded no facts to show that counsel's performance was

deficient, much less that he was prejudiced by counsel's actions.

Similarly, Creque pleaded and argues on appeal that trial counsel

should have better explained why his "young age of 21" was a mitigating

circumstance, but Creque has presented no case that supports a finding

of ineffective assistance of counsel by failing to present scientific evidence

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regarding a 21-year-old defendant's brain development. And, this Court

reviewed the trial court's findings regarding aggravating and mitigating

circumstances on direct appeal and held that its findings "are supported

by the evidence." Creque, 272 So. 3d at 731.

In sum, Creque's claims were either insufficiently pleaded in his

petition, without merit, or both. Moreover, "the evidence presented

against [Creque] in the guilt phase was overwhelming." Lee, 44 So. 3d

at 1159. Creque confessed to shooting both victims before trial and to

shooting one of the victims at trial. In addition, there was substantial

other evidence corroborating Creque’s confessions: a few hours before

committing the crimes, he bought the only gun used in the crimes and

even loaded it; he also confessed to getting rid of his clothes and shoes,

which were found where he said he disposed of them, as was the money

that he hid in the apartment in which he lived at the time. Considering

Creque's pleadings and the testimony that was, in fact, presented during

his guilt, penalty, and sentencing phases, "[w]e are confident that [the

additional mitigating evidence and objections] would have had no impact

on the penalty phase proceedings." Lee, 44 So. 3d at 1161 (affirming the

summary dismissal of Lee's postconviction petition (citing Wiggins v.

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Smith, 539 U.S. 510 (2003))). We also note that " ' " [a]n accused is

entitled ' "not [to] errorless counsel, and not [to] counsel judged ineffective

by hindsight, but [to] counsel reasonably likely to render and rendering

reasonably effective assistance." ' " ' " Hunt v. State, 940 So. 2d 1041, 1059

(Ala. Crim. App. 2005) (citations omitted).

IV. Ineffective Assistance in "Myriad Other Ways"

Creque also argues that trial counsel rendered constitutionally

ineffective assistance in "myriad other ways," specifically that trial

counsel was ineffective by not "adequately" moving for a change of venue,

not "adequately" advising and preparing Creque to testify, not

"adequately" investigating Creque's codefendants and "present[ing] an

alternative theory that Gholston was the real shooter of both victims,"

not "adequately" utilizing forensic experts "to support the defense theory

of 'accidental shooting,' " not "adequately challeng[ing] the state's forensic

evidence … fingerprint and ballistics analysis," not "effectively cross-

examin[ing] Creque's then-girlfriend, [Brittany] Orr," and "fail[ing] to

engage a psychologist before trial in order to determine whether to raise

an Atkins[ v. Virginia, 536 U.S. 304 (2002),] challenge or some other

related defense." (Creque's brief, pp. 88-90.)

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Creque's claims were either insufficiently pleaded, without merit,

or both. In his petition, Creque alleged that trial counsel should have

"presented testimony from the market researcher that encompassed

more than just statistics and publicity and … provided evidence sufficient

to satisfy a finding of presumptive prejudice." (R. 442.) However, Creque

made the same argument on direct appeal that he made in his petition,

that there was "presumptive prejudice because the pretrial publicity

saturated the community with prejudicial and inflammatory reports."

Creque, 272 So. 3d at 723. At best, there was only one additional

allegation in his petition -- that his "family also received numerous death

threats" (C. 443), although he never gave a time for when those were

received or explained how those would have shown "presumed prejudice"

that warranted a change of venue. Indeed, threats have nothing to do

with a change-of-venue claim. This Court explained on direct appeal:

" ' " 'To justify a presumption of prejudice … the publicity must be both

extensive and sensational in nature. If the media coverage is factual as

opposed to inflammatory or sensational, this undermines any claim for a

presumption of prejudice.' " ' " 272 So. 3d at 721 (citations omitted).

" 'Only when "the pretrial publicity has so 'pervasively saturated' the

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community as to make the 'court proceedings nothing more than a

"hollow formality" ' " will presumed prejudice be found to exist.' " Id.

(citations omitted). This Court further explained:

" 'In determining whether presumed prejudice exists, we look at the totality of the circumstances, including the size and characteristics of the community where the offense occurred; the content of the media coverage; the timing of the media coverage in relation to the trial; the extent of the media coverage; and the media interference with the trial or its influence on the verdict. See, e.g., Skilling v. United States, 561 U.S. 358, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010), and Luong v. State, 199 So. 3d 139, 146 (Ala. 2014). "[T]he 'presumptive prejudice' standard is ' "rarely" applicable, and is reserved for only 'extreme situations." ' " Whitehead v. State, 777 So. 2d 781, 801 (Ala. Crim. App. 1999), aff'd, 777 So. 2d 854 (Ala. 2000) (quoting Hunt [v. State], 642 So. 2d [999,] 1043 [(Ala. Crim. App. 1993)], quoting in turn, Coleman [v. Kemp], 778 F.2d [1487,] 1537 [(11th Cir. 1985]).' "

Id. (quoting Floyd v. State, 289 So.3d 337, 374 (Ala. Crim. App. 2017))

(emphasis added). On direct appeal, this Court rejected Creque's

preserved claim that his change-of-venue motion should have been

granted based on actual prejudice, and we also rejected Creque's claim

based on presumed prejudice, albeit using a plain-error standard of

review. After a thorough analysis, we held that "Creque did not make a

showing that his case is in that rare category, and he is not entitled to

relief" based on presumed prejudice. Id. at 724. Creque has pleaded no

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additional facts in his petition that, if true, would show presumed

prejudice, much less that would result in the rare finding of prejudice

under Strickland would be met after rejection under the plain-error

standard of review. See, e.g., Ex parte Taylor, 10 So. 3d at 1078 and

White, 343 So. 3d at 1183.

The circuit court properly found that Creque is not entitled to relief

on the claim in his petition that "counsel failed to adequately advise

[Creque] about testifying and failed to prepare him for his testimony"

because the petition did not say "what specific advice" should have been

offered. (C. 777.). Moreover, even in his brief on appeal, Creque merely

speculates that, "with better advice preparation, Creque may have

chosen not to testify at all or would have been better able to handle his

lapses in memory and the discrepancies between his trial testimony and

his so-called 'confession.' " (Creque's brief, p. 89.) Again, "[s]peculation

is not sufficient to satisfy a Rule 32 petitioner's burden of pleading."

Mashburn, 148 So. 3d at 1125.

The circuit court also properly dismissed the claim that counsel

failed to "adequately investigate … Creque's co-defendants … or present

an alternative theory that Gholston was the real shooter of both victims"

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as insufficiently pleaded. In his petition, Creque alleged that Creque's

brother and "multiple witnesses" he never named could have testified

that Gholston had attempted to get Creque "to rob someone on numerous

prior occasions and that … Creque refused." (C. 426.) Even if true,

Creque pleaded no facts that have any relevance to Creque's decision to

participate in the Krystal robbery, which he admitted to both at trial and

in his pretrial statements. (C. 427.) He also never stated what he would

have discovered about Eldred (other than that she "also worked at

Krystal" and also "would have been privy to any security weaknesses") or

who would have testified to that. Regardless, none of these allegations,

even if true, would absolve or even mitigate Creque's admitted culpability

in participating in the robbery and shooting and killing Graff (which he

admitted at trial), much less his shooting and killing both Graff and

Aguilar (which he admitted in his pretrial confession). Moreover,

Creque's additional allegation that counsel should have advanced a

theory that "Gholston had far more of a motive" and that "Gholston

intentionally murdered the victims" would have contradicted Creque's

pretrial statements and his trial testimony. (C. 454.) Thus, this claim

was both insufficiently pleaded and, in light of the record, meritless.

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The circuit court also properly summarily dismissed, as

insufficiently pleaded, the claim that "counsel failed to adequately utilize

forensic experts … to support the defense theory of 'accidental shooting' "

and to "adequately challenge the State's forensic evidence." (Creque's

brief, pp. 89-90.) " 'It is well settled that, to properly plead a claim that

counsel were ineffective for failing to hire an expert witness, the

petitioner must, among other things, identify by name the expert witness

his counsel should have hired, set out the testimony that the named

expert would have given, and plead that the named expert was both

willing and available to testify at trial.' " Burgess v. State, 413 So. 3d 30,

49 (Ala. Crim. App. 2023) (quoting Brooks v. State, 340 So. 3d 410, 437

(Ala. Crim. App. 2020)). Creque did not name an expert that could have

contradicted the State's evidence at trial; nor did he outline the proposed

testimony of any such expert. Likewise, Creque pleaded that counsel

should have cross-examined the State's experts to cast doubt on Creque's

fingerprints being found on the money bag, on the gunshot wound being

a contact wound, and on whether Creque's HiPoint .9 mm gun was used

to shoot both victims. (C. 463-71.) However, Creque never acknowledged

how casting doubt on that evidence would have contradicted Creque's

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own statements, both before trial and during his trial testimony, that he

participated in the robbery, that he accidentally shot Graff during a

struggle over the cooler door, or that he and Gholston used the HiPoint

.9 mm gun Creque purchased a few hours before the robbery. Moreover,

before trial Creque's counsel did hire and present "the testimony of

Janice Johnson, a … crime-scene analyst who had experience in crime-

scene reconstruction," and she "examined the physical evidence as well

as photographs taken at the scene and reports generated by the State's

experts." Creque, 272 So. 3d at 698. This Court summarized Johnson's

testimony:

"Johnson testified about numerous actions of law- enforcement officials and crime-scene analysts in Creque's case that, she said, had not been performed properly, and she said other actions to preserve evidence properly should have been taken, but were not. For example, Johnson identified photographs of boxes inside and outside the cooler that had what appeared to be blood on them, and she said that the stains had not been photographed with a scale to show the size of each stain. She said, furthermore, that the stains had not been swabbed and analyzed, so there was no way to determine whether they were bloodstains and, if so, whether the blood was from Aguilar or Graff. Throughout her testimony, Johnson noted repeatedly that bloodstains and blood spatter were photographed without a scale, making it difficult to determine what had happened at the scene."

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Id. Johnson also testified, contrary to the State's crime-scene technician,

that the evidence indicated that Graff was "above the floor" when he was

shot and that the evidence did not contradict Creque's testimony that

Graff was shot when his gun fired "accidentally." Id. at 698-99. This trial

testimony was favorable to Creque, and his postconviction petition does

not proffer expert testimony that would have been more favorable to him.

The circuit court also properly dismissed the claim that counsel

"failed to effectively cross-examine" Brittany Orr as insufficiently

pleaded. (Creque's brief, p. 90.) Creque pleaded in his petition that

Brittany was never asked how many officers interviewed her and

whether she had been yelled at or threatened to offered a plea deal.

However, Creque never pleaded how Brittany would have responded to

such questions. Thus, this contention is entirely speculative.

Creque's last contention in his laundry list of claims is that "counsel

failed to engage a psychologist before trial in order to determine whether

to raise an Atkins[ v. Virginia, 536 U.S. 304 (2002),] challenge or some

other related defense." (Creque's brief, p. 90 (emphasis added).)

Likewise, Creque asserts on appeal that "[a]n Atkins or related defense

was potentially available." (Creque's brief, p. 91 (emphasis added).) This

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contention is insufficiently pleaded and speculative. See Mashburn, 148

So. 3d at 1125. In his petition, Creque contended that counsel was

ineffective for failing to engage either a psychologist or psychologist to

evaluate him before trial, particularly because Creque was evaluated

after trial and determined to have "low" intelligence. However, Creque

never pleaded who should have been hired and that they would have been

available. To the extent that Creque believes that Dr. Walker should

have evaluated him and presented his findings at the penalty phase

instead of to the trial court alone at sentencing, Creque still pleaded no

facts that his IQ was low enough to warrant an Atkins challenge.

Likewise, Creque pleaded no facts that a different expert was available

to testify who, contrary to Hodson and Dr. Walker, would have found

Creque mentally unfit for the death penalty under Atkins and been

available to testify at Creque's trial. (C. 416, 441.) " 'It is well settled

that, to properly plead a claim that counsel were ineffective for failing to

hire an expert witness, the petitioner must, among other things, identify

by name the expert witness his counsel should have hired, set out the

testimony that the named expert would have given, and plead that the

named expert was both willing and available to testify at trial.' " Burgess

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v. State, 413 So. 3d 30, 49 (Ala. Crim. App. 2023) (quoting Brooks v. State,

340 So. 3d 410, 437 (Ala. Crim. App. 2020)).

Considering the record, Creque pleaded no facts to show that

counsel was ineffective for not hiring an expert to pursue an Atkins or

similar challenge. Although Hodson discovered and testified that Creque

had difficulties in school and "low test scores," Hodson's opinion was that

Creque was "reasonably intelligent," and had "undiagnosed learning

disabilities." (TR. 2703, 2707, 2801.) Thus, trial counsel's initial

investigation did not make further consideration of Atkins claims

necessary. Moreover, that any such challenge would have been

successful, and, thus, that counsel was ineffective for not raising it or not

raising it sooner, is refuted by the record and is meritless. Dr. Walker,

the neuropsychologist who testified at Creque's sentencing hearing,

testified that she administered "a battery of tests" and determined that

Creque "does not fall within the range of being mentally retarded." (TR.

2974-76, 2995.) Moreover, Dr. Walker testified that Creque's "scores

ranged from low average to superior on one task." (TR. 2936.) On "visual

spatial, he did just fine." (TR. 3022.) Even Creque's "speed of processing

information" was not impaired. (TR. 3003.) Considering Dr. Walker's

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testimony, Creque's critique of the timing of the testing is of no merit

because had Dr. Walker been engaged before trial and testified earlier,

her testimony was still that he did not have an Atkins defect and, thus,

any deficiency in the timing would not meet the Strickland standard of

prejudice, which requires a reasonable probability of a different result.

See, e.g., Wilson v. State, [Ms. CR-21-0109, Aug. 22, 2025] ___ So. 3d ___,

___ (Ala. Crim. App. 2025) ("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."). Finally, " ' "[d]efense counsel is entitled to rely on the

evaluations conducted by qualified mental health experts, even if, in

retrospect, those evaluations may not have been as complete as others

may desire." ' " White v. State, 343 So. 3d 1150, 1176 (Ala. Crim. App.

2019) (quoting McMillan v. State, 258 So. 3d 1154, 1177 (Ala. Crim. App.

2017), quoting in turn Darling v. State, 966 So. 2d 366, 377 (Fla.

2007)). Creque's contentions were, thus, insufficiently pleaded and

without merit.

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V. "Legal Errors" by the Circuit Court

Creque concludes his brief on appeal with additional contentions of

error he believes the circuit court committed:

"(1) finding Creque was required to prove his case at the pleading stage; (2) finding this Court's prior decision on Creque's direct appeal was dispositive of his Rule 32 claims; (3) failing to rule on every claim; (4) denying Creque's request for discovery; and (5) refusing an evidentiary hearing."

(Creque's brief, p. 91.) Creque's contentions of error are each without

Creque's first contention -- that the circuit court improperly

dismissed his petition for lack of proof rather than a lack of sufficient

pleading -- is refuted by the record. We have reviewed the circuit court's

order, and it is abundantly clear that Creque's claims were properly

dismissed because he failed to plead facts that, if true, would entitle him

to relief. For example, Creque alleges that the circuit court conflated

pleading and proof by taking the following out of context: that he " 'fail[ed]

to overcome the presumption that … the challenged action might be

considered sound trial strategy." (Creque's brief, p. 93 (citing C. 773-75,

778-84).) However, the circuit court's order makes it clear that the

circuit court was not finding insufficient proof but insufficient pleading

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based on the preceding sentences: "The Petitioner fails to provide

sufficient facts or allegations that if such evidence was presented, there

is a reasonable probability that the outcome of the proceedings would

have been different. The Petitioner fails to overcome the presumption

that, under circumstances, the challenged action might be considered

sound trial strategy." (C. 773 (emphasis added).) Moreover, this Court

may affirm for any reason, and we have already held herein that all of

Creque's claims were insufficiently pleaded, without merit, or both.

Second, Creque's contention that the circuit court found that claims

that had been rejected on direct appeal " 'automatically foreclose[d] a

determination of the existence of the prejudice required under Strickland

to sustain a claim of ineffective assistance of counsel,' " (Creque's brief, p.

94 (quoting Ex parte Taylor, 10 So. 3d at 1079)), is waived under Rule

28(a)(10) because Creque cites the entire circuit court's order dismissing

his petition and does not point to any specific examples. Moreover,

Creque's claim is without merit. The circuit court did not find that any

claims rejected on direct appeal automatically foreclosed an ineffective-

assistance-of-counsel claim involving the underlying claim. Instead, the

circuit court recognized that "[t]he Petitioner bears the burden of

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pleading facts that, if true, would entitle him to relief." (C. 765.) The

circuit court also generally stated that Creque's petition did not

sufficiently "allege that his counsel's representation fell below an

objective standard of reasonableness or that the Petitioner was

prejudiced as a result of trial counsel's deficient representation." (C.

766.) The circuit court then repeatedly rejected Creque's insufficiently

pleaded claims. For example, the circuit court rejected Creque's claim

"that trial counsel failed to engage an expert to testify about [his] drug

use and its effect on his mens rea and ability to waive Miranda rights,"

explaining:

"[Creque's trial] counsel did present evidence of [Creque's] use of Ativan and its use. The Appeals Court addressed such testimony. [Creque] fails to plead what additional or other facts or opinion could be offered which would have not been cumulative. Under such circumstances, the Petition fails to contain sufficient pleadings to allege that trial counsel's representation fell below an objective standard of reasonableness or that [Creque] was prejudiced as a result of trial counsel's deficient representation.

"Additionally, this issue was concluded by the Appeals Court in its determination that the Petitioner made his statement freely and voluntarily, and nothing indicated he was impaired by Ativan."

(C. 767-68.)

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Clearly, although the circuit court considered that the appellate

court had rejected the underlying claim on the merits, the circuit court

did not automatically reject the ineffective-assistance claim but, rather,

found that Creque had not pleaded additional facts or opinion that would

not have been cumulative and had not pleaded facts to show that Creque

was prejudiced. As we have already explained herein, the Alabama

Supreme Court made clear that, although a holding of no plain error on

direct appeal will not "automatically foreclose" a finding of prejudice

under Strickland, it is "the rare case in which the application of the plain-

error test and prejudice prong of the Strickland test will result in

different outcomes." Ex parte Taylor, 10 So. 3d at 1078. And, Creque

simply did not plead any facts to show that his claims presented the "rare

case." White, 343 So. 3d at 1184. Moreover, nothing in Creque's brief on

appeal suggests that the circuit court's findings were in error. As already

stated, Creque alleges only a general argument and has failed to point to

a specific example where the trial court's finding was in error.

Third, Creque argues that the circuit court erred by not specifically

addressing every contention within every claim in its order summarily

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dismissing his petition, specifically his allegations that trial counsel were

ineffective for

"(1) failing to present evidence from lay witnesses regarding Creque's mental state on the night of the offense, (2) failing to investigate Cassandra Eldred; (3) failing to provide Dr. Kalin with relevant evidence until the day of his testimony; (4) selecting an expert, Dr. Kalin, who likely did not want to represent Creque; (5) incorrectly engaging a forensic toxicologist instead of a clinical toxicologist; and (6) failing to have Creque evaluated to determine whether an Atkins challenge or similar defense could be raised."

(C. 96-97.)

Creque's reliance on Borden v. State, 891 So. 2d 393, 397 (Ala.

Crim. App. 2002) and Henderson v. State, 570 So. 2d 879, 880-81 (Ala.

Crim. App. 1990) in support of his argument that neither he nor this

Court could "determine -- with clarity -- the basis for the dismissal of each

claim in the petition" is misplaced. (Creque's brief, p. 96.) In Borden, the

State "did not seek to dismiss allegations of ineffective assistance of

counsel." 891 So. 2d at 395. However, the circuit court in Borden stated

that it was granting the State's motion to dismiss Borden's ineffective-

assistance-of-counsel claims. Id. In addition, the circuit court

"appear[ed] to have misapprehended Borden's burden at the pleading

stage." Id. at 396. For both reasons, this Court remanded for

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clarification. Moreover, this Court's "review of the record" did "not

suggest that dismissal … would have been proper." Id. Similarly, in

Henderson, the State requested that Henderson's petition be dismissed

as successive, but the circuit court did not grant that motion "but found

the petition to be 'without merit' and denied the petition." 570 So. 2d at

880. In short, the circuit court's basis for denying the petition was not

clear in Henderson, and "basis is essential to afford the petitioner due

process on his appeal of the denial of his petition." Id. at 880.

By contrast, the circuit court in this case was clear that it was

dismissing all of Creque's ineffective-assistance-of-counsel claims

because they were insufficiently pleaded, regardless of whether the court

addressed every single contention within Creque's numerous claims:

"[T]he Court is satisfied that [Creque] has neither pleaded his claims with sufficient specificity nor supported his claims with a credible factual basis that entitles him to an evidentiary hearing. No purpose would be served by further proceedings in this case. … [Creque's] claims fail the Strickland requirements in that they failed to show that trial counsel's representation fell below an objective standard of reasonableness, that trial counsel's actions might be considered sound trial strategy, and that they fail to set out a full disclosure of the facts."

(C. 784-85.) In addition, unlike in Borden and Henderson, the State

sought to summarily dismiss all of Creque's ineffective-assistance claims

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as insufficiently pleaded, including the six specific claims that Creque

says the reason for the circuit court's summary dismissal is unclear. (C.

645 (lay witnesses who could have testified regarding mental state), C.

605-06 (investigation of Eldred), C. 609-10, 619-47 (allegations regarding

Dr. Kalin), (C. 621-22, 643-44, 670-71 (allegations regarding a clinical

toxicologist), and C. 673-74 (claim regarding cognitive testing and

abilities)). As the circuit court held, "[t]he entirety of Creque's petition

challenges the effectiveness of trial counsel's representation. … He avers

that he was denied effective assistance throughout the guilt and penalty

phases. His claims should be summarily dismissed as insufficiently

pleaded under Rules 32.3 and 32.6(b)." (C. 597-98.) And, as already

stated, the circuit court did not here confuse the burden of pleading and

the burden of proof. Furthermore, this Court, after reviewing Creque's

petition in light of the record, agrees with the circuit court that all of

Creque's claims are insufficiently pleaded, without merit, or both.

Fourth, Creque's contention that the circuit court erred by denying

his discovery request is also without merit. " ' "We will reverse a [circuit]

court's denial of a postconviction discovery request only for an abuse of

discretion." ' " Jackson v. State, 910 So. 2d 797, 802 (Ala. Crim. App.

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2005) (quoting Ex parte Mack, 894 So. 2d 764, 768 (Ala. Crim. App. 2003),

quoting in turn People v. Johnson, 205 Ill. 2d 381, 793 N.E.2d 591, 275

Ill. Dec. 820 (2002)). Moreover, " ' "[a] trial court does not abuse its

discretion in denying a discovery request which ranges beyond the

limited scope of a post-conviction proceeding and amounts to a 'fishing

expedition.' " ' " Id. (citations omitted). It is equally well settled that,

"[w]hen ascertaining whether discovery is warranted in a

[postconviction] proceeding, the court must first determine whether the

… petitioner has shown good cause for disclosure of the requested

materials." Jackson, 910 So. 2d at 801 (citing Ex parte Land, 775 So. 2d

847 (Ala. 2000)).

The circuit court did not abuse its discretion by denying Creque's

discovery request because Creque did not demonstrate "good cause" for

discovery. A "good cause" determination necessarily requires

consideration of sufficiently pleaded issues in a filed petition because

postconviction discovery is not intended to support a "fishing expedition"

but is, rather, "a means of vindicating actual claims." Ex parte Land, 775

So. 2d at 852, overruled on other grounds, State v. Martin, 69 So. 3d 94

(Ala. 2011). See also Morris v. State, 261 So. 3d 1181, 1202 (Ala. Crim.

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App. 2016) ("Good cause" cannot be shown for claims that are

"insufficiently pleaded, procedurally barred, or meritless."). Because

"[w]e have held in the previous sections of this opinion that the circuit

court did not err by summarily dismissing [Creque's] claims," "it follows

that [Creque] did not meet the good-cause standard for obtaining

postconviction discovery." Id. Thus, the circuit court did not abuse its

discretion by denying Creque's postconviction discovery requests.

Creque's last contention -- that the circuit court erred by dismissing

his claims without an evidentiary hearing -- is equally meritless.

"Neither this Court nor the Alabama Supreme Court has ever held that

an evidentiary hearing must be conducted on every postconviction

petition that raises a claim of ineffective assistance of counsel. Such a

requirement would burden an already overburdened judiciary." Jackson

v. State, 133 So. 3d 420, 444 (Ala. Crim. App. 2009). Rather, " ' "[a]n

evidentiary hearing on a coram nobis petition [now Rule 32 petition] is

required only if the petition is 'meritorious on its face.' " ' " Id. at 444-45

(quoting Moore v. State, 502 So.2d 819, 820 (Ala.1986), quoting in turn

Ex parte Boatwright, 471 So.2d 1257 (Ala.1985)). We have also explained

that "[t]he purpose of a Rule 32 evidentiary hearing is to give a petitioner

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the opportunity to satisfy his or her burden of proof as to claims that were

properly raised and sufficiently pleaded in a Rule 32 petition." Travis v.

State, 407 So. 3d 325, 339 (Ala. Crim. App. 2023). Because Creque's

claims were insufficiently pleaded, refuted by the record, or otherwise

without merit, he was not entitled to an evidentiary hearing.

Accordingly, the circuit court did not err by summarily dismissing all of

Creque's claims, including his ineffective-assistance-of-counsel claims,

without an evidentiary hearing.

Finally, we note that, to the extent that Creque raised any claims

in his petition that he did not reassert in his brief on appeal, those claims

are deemed abandoned. "We will not review issues not listed and argued

in brief." Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995). We

further note that Creque's attempts to cure the waiver of arguments in

his reply brief fail. " 'Where an appellant first cites authority for an

argument in his reply brief, it is as if the argument was first raised in

that reply brief, and it will not be considered.' " Moore v. Mikul, 359 So.

3d 274, 278 (Ala. 2022) (quoting Steele v. Rosenfeld, LLC, 936 So. 2d 488,

493 (Ala. 2005)). In short, " ' "an argument may not be raised, nor may

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an argument be supported by citations to authority, for the first time in

an appellant’s reply brief." ' " Id. (citations omitted).

Conclusion

For these reasons, Creque is due no relief on his postconviction

claims, and the judgment of the circuit court summarily dismissing his

postconviction petition is affirmed.

AFFIRMED.

Minor and Anderson, JJ., concur. Windom, P.J., and Kellum, J.,

concur in the result.