Michael David Belcher v. State of Alabama

• Court: Court of Criminal Appeals of Alabama
• Decided: August 22, 2025
• Docket: CR-2023-0206
• Status: Published

Opinion

Rel: August 22, 2025

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, 2024-2025 _________________________

CR-2023-0206 _________________________

Michael David Belcher

v.

State of Alabama

Appeal from Tuscaloosa Circuit Court (CC-16-161.60)

COLE, Judge.

Michael David Belcher, an inmate on Alabama's death row, appeals

the Tuscaloosa Circuit Court's summary dismissal of his petition for

postconviction relief. CR-2023-0206

Facts and Procedural History

In January 2016, Belcher was indicted for the murder of Samantha

Payne, 1 which was made capital because it was committed during the

course of a kidnapping. Belcher was convicted of the capital murder of

Samantha during a kidnapping, see § 13A-5-40(a)(1), Ala. Code 1975,

and, on March 18, 2019, the jury unanimously recommended that Belcher

be sentenced to death after also unanimously finding that the murder

was "especially heinous, atrocious, or cruel compared to other capital

offenses." (C. 28, 34.)2 On April 3, 2019, the circuit court sentenced

Belcher to death in accordance with the jury's recommendation. (C. 30-

52.) On April 10, 2019, Belcher was appointed postconviction counsel.

1Four other individuals -- Chylli Bruce, Steven George, Alyssa Watson, and Marcus George -- were also indicted for their roles in Samantha's murder. Belcher v. State, 341 So. 3d 237, 238 n. 1 (Ala. Crim. App. 2020). Bruce and Steven George testified at Belcher's trial. "Bruce had pleaded guilty to felony murder in exchange for a 20-year sentence that would be split to require her to serve 5 years in prison." Id. "The circuit court conditionally accepted Bruce's plea and delayed sentencing her until after she testified at her codefendants' trials." Id. "Steven George pleaded guilty to murder in exchange for a sentence of life imprisonment with the possibility of parole." Id. "The court also conditionally accepted Steven's plea and delayed his sentencing." Id.

2"C" refers to the clerk's record in this case. "SC" refers to the supplemental record in this case. "TC" and "TR" refer to the clerk's record and to the reporter's transcript from Belcher's trial. 2 CR-2023-0206

The facts of Belcher's crime were set forth in this Court's opinion

affirming Belcher's conviction and sentence on direct appeal as follows:

"[O]n November 9, 2015, a hunter discovered the nude, decapitated, and decomposed body of Samantha Payne tied to the base of a tree in Talladega National Forest. Samantha's hands were stretched upward and bound to the base of the tree with a leather belt, and 'coaxial cable' was tied around Samantha's wrists. (R. 920.) Her head was approximately 14 feet from her body. Dr. Steven Dunton, a medical examiner with the Alabama Department of Forensic Sciences, testified that because Samantha's body was so decomposed it was impossible for him to determine her exact cause of death. (R. 923.) He said that X-rays revealed that Samantha had fractures to four of her ribs and that those fractures were caused by a 'crushing trauma of some type.' (R. 928.) Samantha was alive, he said, when she was tied to the tree. Dr. Dunton testified that, based on his experience, he did 'not believe' that Samantha died of natural causes. (R. 928.)

"Two of Belcher's codefendants testified in exchange for plea agreements with the State. Chylli Bruce testified that she pleaded guilty to her role in the kidnapping and murder of Samantha and that, as part of that agreement, she agreed to testify truthfully at her codefendants' trials. (R. 464.) She testified that she was a drug addict; that she was using crystal methamphetamine at the time of the murder; that she met Belcher when she was 18 years old; and that they 'hung out' together for several months before the murder. (R. 469.) On the night of the murder, Bruce said, she, Belcher, Steven George, Alyssa Watson, and Marcus George were at a place called Wee Racing ('the Shop'), a motorcycle-repair shop that was owned by Belcher's father, when Samantha arrived at around 2:00 a.m. At around 3:00 a.m., Belcher forced Samantha into the backseat of his vehicle and held her down while Bruce drove the vehicle to Belcher's house. Steven, Alyssa, and Marcus[] followed in a separate vehicle. When

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Belcher got out of his vehicle, Samantha was screaming and Belcher was hitting her in the face. (R. 478.) Instead of going into Belcher's house, they got back into the vehicles and drove to an abandoned trailer on Highway 82. According to Bruce:

" '[Samantha] is taken out of the car. [Belcher] is trying to tie her up in the back seat, but she won't be still. So I place my foot on her face, and I guess he's tying her up with the belt or something. The next thing I remember she's laying on the ground, she's tied up. I'm asked to take her fingernails off.'

"(R. 480.) Bruce got a knife and 'popped' off Samantha's artificial fingernails (R. 480), Belcher and Marcus beat and kicked her, and then they put Samantha into the trunk of one of the vehicles and drove to Talladega National Forest. At one point, Samantha fell out of the trunk when the vehicle hit a pothole, and Bruce helped Belcher put Samantha back into the trunk and they drove into the forest. Bruce testified:

" 'We come to a bridge. Marcus says that -- tells [Belcher] that we're going to have to kill her. [Belcher] says that we will have to. So we get back on the road, and we keep going into this forest. We run out of gas.'

"(R. 484.) At that point, Marcus and Alyssa drove past them in their vehicle. Belcher and Steven then took Samantha out of the trunk and led her into the forest. Shortly thereafter, Bruce said, Steven returned and she and Steven walked to a campsite and called Steven's brother to bring them gas. After Bruce and Steven put gas in the car and tried to leave, police arrived. Belcher's vehicle was searched, and Bruce was arrested, charged with possession of drug paraphernalia, and taken to jail. About four days after she was released from jail, Bruce said, she saw Belcher and he confessed to her that he had killed Samantha by stabbing her.

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"Steven testified that he pleaded guilty to murder in exchange for his testimony at his codefendants' trials. He testified that in September 2015, he started spending a lot of time with Belcher and the two would hang out together and 'do drugs' at the Shop. (R. 547.) On the evening of November 1, 2015, Belcher, Marcus, Alyssa, and Samantha were at the Shop. Steven said that he took Samantha's vehicle when she went to the bathroom and left her keys on a counter. He and Marcus drove down Highway 219, but he decided that he wanted the vehicle's catalytic converter, so he drove back to the Shop. After removing the catalytic converter, he set the vehicle on fire. He and Marcus then went to Belcher's house so that he could change clothes. When they returned to the Shop, Steven said, Belcher and Bruce were in Belcher's vehicle and were driving away from the Shop. They followed them to Belcher's house. Belcher pulled Samantha from the backseat of his vehicle and started kicking and slamming Samantha into the floor. Samantha's face was bleeding badly. (R. 562.) The group then got into two vehicles and drove to an abandoned trailer and house. (R. 563.) When they arrived, Belcher continued to kick and stomp Samantha in the face. Belcher told Steven to get something he could use to tie up Samantha, so Steven went and got some cable wire from the trailer. Samantha was crawling around and telling them that she 'loved them' and that she would not tell anyone what they had done. (R. 565.) Belcher, Bruce, and Steven then left in Belcher's vehicle with Samantha in the trunk and Belcher driving. Samantha fell out of the trunk and Belcher stopped. Bruce helped Belcher put Samantha back in the trunk. Belcher said that he knew a place that they could take her, and they headed to the Talladega National Forest. They ran out of gas. According to Steven:

" 'And then [Belcher] said, "We got to get her out of the car." So he gets her out of the car, starts dragging her in the woods. [Belcher] told me to come help him. So I get out of the car, go help him drag her in the woods.'

5 CR-2023-0206

"(R. 572.)

" '[S]he kept trying to get loud with him. So [Belcher] started stomping her in the face. Said, Shut up. If you don't shut up, I'm going to kill you. He told me to get some more rope out of the car. So I was fixing to go get -- He said, Well, hand me your knife. I gave him the knife, and I went to the car. When I got to the car, [Bruce] was already walking back. I told [Bruce] to get in the car. I got the car cranked up. It might have went a few feet and cut off. Then me and her went up the hill to the firing -- shooting range. We got in a conversation with the game wardens, asking for some gas. They didn't have no gas, so we kept walking. So I got up the road.'

"(R. 575.) The last time he saw Samantha, Steven said, she was fully dressed and alive.

"Deputy Enoch Rose of the Hale County Sheriff's Department testified that he was dispatched to Talladega National Forest on November 2, 2015, in response to an emergency 911 call that 'somebody was up there, supposedly one of Tuscaloosa County's most wanted ... and that subject was up there walking on the road and asking for gas.' (R. 615.) He approached a vehicle and found Steven and Bruce. Deputy Rose said that he verified with dispatch that the vehicle belonged to Belcher. After searching the vehicle and the surrounding area, he found a knife near the passenger side front tire of the vehicle. (R. 627.) That knife was identified as belonging to Steven and as the knife that Steven said he gave to Belcher before Samantha was taken into the forest.

"....

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"James Harvey testified that on the morning of November 2, 2015, Lauren [Harvey] telephoned him and said that a 'half-naked man' was beating on her door and trying to get into her house. (R. 655.) He lived about four miles from Lauren, so he got into his vehicle and drove to her house. As Harvey approached Lauren's driveway, he said, Lauren called him. The man had left her house, and she told Harvey the direction that the man was walking. Harvey found a man, who he identified at trial as Belcher, sitting on the guardrail of a bridge. He said that Belcher had no shirt and had scratches all over him, and that there was a 'red tint' to his hands that Harvey believed was some type of blood. (R. 662.) Harvey said that Belcher told him that his friends had played a trick on him; that they had left him in the woods; and that he had been walking all night. Harvey drove Belcher to a local store. Lauren called Harvey and told him that deputies wanted to talk to Belcher. Harvey said that he then drove Belcher back to where he had picked up Belcher and that deputies were waiting for them.

"Lieutenant Al Jackson with the Tuscaloosa County Sheriff's Office testified that he was called to South Sandy Road in response to a call about a 'wanted person.' (R. 668.) When he arrived, he found a vehicle on the side of the road and two people in custody, Steven and Bruce. While there he received another call from dispatch regarding a person knocking on doors on Bear Creek Road. Eventually, he met up with Harvey; a man who he identified as Belcher was in the car with Harvey. Belcher had no shirt on, was wearing shorts, and had 'scratches on him, like briar scratches.' (R. 675.)

"Investigator J.C. Bryant of the Tuscaloosa Police Department testified that he was called to the scene when a body was discovered in Talladega National Forest on November 9, 2015. He said that, after he learned that Steven and Bruce had been detained a week earlier in the general area where the body was found, he spoke to Steven, who was still in police custody. He said that Steven told him what had

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happened to Samantha, and he then interviewed Belcher on November 9, 2015. Belcher denied all involvement in Samantha's murder. On November 10, 2015, Inv. Bryant obtained a search warrant for Belcher's house. As a result of the search, he discovered a car battery inside a clothes dryer.

"Investigator Richard Wilkins of the Tuscaloosa Police Department testified that he was the lead investigator into Samantha's death. He testified that a search was conducted at the location where Steven and Bruce said that Samantha had first been tied up. The cable retrieved from that location was consistent, he said, with the cable wire that had been used to tie Samantha's wrists.

"A forensic biologist with the Alabama Department of Forensic Sciences, Hannah Payne, testified that she conducted biological tests on swabs and clothing that had been collected from the crime scene and sent to her office. She testified that Belcher's DNA was found on the handle of Steven's pocketknife (R. 896), and that Samantha's blood was found on a jacket that had been taken from Belcher's vehicle and on Steven's shirt.

"Belcher's defense was that, although he participated in the events that ultimately led to Samantha's murder, Steven was the person who actually killed her. Belcher testified on his own behalf that on the evening of November 1, 2015, he was at the Shop working on a customer's motorcycle when he 'looked up' and saw Samantha. (R. 957.) He was surprised, he said, to see her because he had already told her not to have any contact with him. Belcher said that he, Steven, Marcus, Alyssa, and Bruce were 'snorting methamphetamine.' (R. 959.) Sometime later, he said, Samantha 'stormed' into where he had been working and asked him what happened to her vehicle because it was missing from the Shop. (R. 960.) He said that the 'others' had a 'violent argument' with Samantha and that Alyssa and Bruce physically attacked Samantha. (R. 963.) They all drove to his house, Belcher said, and all the

8 CR-2023-0206

others, except himself, were debating about what to do with Samantha. He testified that Steven and Bruce pulled Samantha from the car and started punching and stomping her face. He watched it all happen and did not intervene to help Samantha. According to Belcher, Marcus handed Steven a hammer, Steven hit Samantha in the head, and then they put Samantha in a vehicle and took her to Watson's father's house off Highway 82. He testified:

" 'Steven opens the trunk up. And me and Steven take [Samantha] out of the trunk. [Bruce is] still in the car. Me and Steven are still arguing. And it's -- we didn't just leave her in the middle of the road. We sat her a few feet off on the edge of the woods in the bushes. At that point, Steven was walking around the car. I turn around and walk back off up the road the way we had just came in. I didn't know where I was at. I didn't know where the road led to. I knew we came in the way we came in, and I just walked. I continued to walk, took several different roads; but I didn't remember where we come from. It was daylight at this point.'

"(R. 975.) A man picked him up, he said, and took him to a store. Shortly thereafter, he was taken into custody. On cross- examination, Belcher said that he just 'followed the crowd.' (R. 990.)

"At the penalty phase of the trial, Belcher called several witnesses to testify in mitigation. Deputy Mike Byars of the Tuscaloosa County Sheriff's Office testified that while incarcerated Belcher had been a well-behaved inmate. Dr. Randall Griffith, a psychologist, testified that he conducted a neuropsychological evaluation of Belcher and that he interviewed Belcher at the Tuscaloosa County jail. It was his opinion that Belcher suffered from a 'mild neuro-cognitive disorder,' which, he said, means that Belcher had 'some degree of impairment in one area of his thinking ability.' (R.

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1109.) Belcher also presented the testimony of several family members who said that Belcher was a doting father, that he was a kind and loving person, and that he loved animals. Belcher's mother testified that since Belcher had been arrested his faith had grown and that when she spoke to him they frequently prayed together."

Belcher v. State, 341 So. 3d 237, 249-54 (Ala. Crim. App. 2020) (footnotes

omitted).

On direct appeal, this Court affirmed Belcher's conviction and

sentence. See Belcher, supra. On May 21, 2021, after the Alabama

Supreme Court denied Belcher's petition for a writ of certiorari, this

Court issued a certificate of judgment.

Belcher filed his first direct-appeal brief on February 14, 2020, and

he filed the instant postconviction petition on May 12, 2021, during the

pendency of his direct appeal, after paying the filing fee and receiving a

single, 90-day extension from the circuit court as permitted by the Fair

Justice Act ("the FJA"), § 13A-5-53.1, Ala. Code 1975.3 (C. 53.) The State

filed its answer to Belcher's petition on July 6, 2021, and moved the

circuit court to summarily dismiss the petition on the grounds that

3Because Belcher was sentenced to death after August 2017, his

postconviction efforts were governed by the FJA. See § 13A-5-53.1, Ala. Code 1975. 10 CR-2023-0206

Belcher's claims were insufficiently pleaded and meritless. Belcher

submitted a response and opposition to the State's answer on August 31,

2021. On September 18, 2021, Belcher sought leave to amend the first

claim in his petition. The State moved to strike the proposed

amendment, contending that it failed to satisfy the successive-petition

requirement established by the FJA.

On September 30, 2021, the circuit court held a hearing on the

State's motion to dismiss and Belcher's request for leave to amend his

petition. The same judge who had presided over Belcher's trial presided

over the postconviction proceedings, and, on February 15, 2023, the

circuit court entered an extensive order summarily dismissing Belcher's

petition for postconviction relief without an evidentiary hearing because,

it determined, the claims therein were insufficiently pleaded, meritless,

or both. This appeal follows.

Standard of Review

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

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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 ' "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 Belcher'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

12 CR-2023-0206

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 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

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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 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.

The circuit court also summarily dismissed some of Belcher's claims

on the merits. Importantly, the circuit judge who ruled on Belcher's

postconviction petition was the same judge who had presided over

Belcher's capital-murder trial. When the judge who rules on a petition is

the "same judge who presided over [the] trial," the judge has personal

knowledge of facts underlying the allegations and has had the

" 'opportunity to observe counsel's performance throughout the

proceedings.' " Partain v. State, 47 So. 3d 282, 286 (Ala. Crim. App. 2008).

14 CR-2023-0206

It is well settled that a judge may summarily deny a claim, including an

ineffective-assistance-of-counsel claim, without further proceedings

based on his own personal knowledge. Id. (citing Ex parte Walker, 800

So. 2d 135 (Ala. 2000)). See also Harris, 365 So. 3d at 1090 ("This is true

even with respect to claims of ineffective assistance of counsel."). Indeed,

" '[n]either 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. "An evidentiary hearing on a coram nobis petition [now Rule 32 petition] is required only if the petition is 'meritorious on its face.' Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985)." Moore v. State, 502 So. 2d 819, 820 (Ala. 1986).'

"Jackson v. State, 133 So. 3d 420, 444-45 (Ala. Crim. App. 2009). See also Ex parte Hill, 591 So. 2d 462, 463 (Ala. 1991) ('[A] judge who presided over the trial or other proceeding and observed the conduct of the attorneys at the trial or other proceeding need not hold a hearing on the effectiveness of those attorneys based upon conduct that he observed.'); and Partain v. State, 47 So. 3d 282, 286 (Ala. Crim. App. 2008) ('[A] circuit judge who has personal knowledge of the facts underlying an allegation of ineffective assistance of counsel may summarily deny that allegation based on the judge's personal knowledge of counsel's performance.')."

15 CR-2023-0206

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 court.' " Harris, 365 So. 3d at 1091

(quoting Acra v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012)).

Analysis

Belcher asserts six general arguments on appeal: that the circuit

court erred by summarily dismissing his claim that Juror J.D.H.

committed misconduct by failing to disclose his son's criminal

convictions, that the circuit court erred by refusing to equitably toll the

deadline to amend his petition, that the circuit court erred by summarily

dismissing his claims that counsel rendered ineffective assistance during

the penalty phase of his capital-murder trial, that the circuit court erred

by summarily dismissing his claims that counsel rendered ineffective

assistance at the guilt phase of his capital-murder trial, that the circuit

court erred by failing to grant him discovery, and that application of the

FJA deprived him of a fair opportunity to obtain postconviction relief.

None of these arguments entitles Belcher to relief.

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I. Juror-Misconduct Claim

Belcher first contends that the circuit court erred by summarily

dismissing his postconviction claim that "Juror J.D.H. failed to disclose,

in response to multiple questions on the [juror] questionnaire, that his

son, P.D.H., had been arrested four times in the year leading up to

Belcher's trial." (Belcher's brief, p. 10.) More specifically, the juror

questionnaire, completed on March 5, 2019, asked if "you, a family

member or relative, or a close friend" had "ever been involved in a

criminal case as a defendant, victim, witness, or complainant," and

J.D.H. responded "no." (C. 57; J.D.H.'s juror questionnaire.) The

questionnaire also asked if "you or a family member or relative or close

friend" had "ever been arrested for or charged with an offense other than

a simple traffic violation," and J.D.H. responded affirmatively, but he

stated "only that he personally had been charged with a crime that was

not a felony." (C. 57; J.D.H.'s juror questionnaire.) Finally, when asked

if he personally knew "anyone who has been convicted or pleaded guilty

to a crime," J.D.H. responded "yes," but he left the section blank that

asked jurors who responded affirmatively to state "each person, ... that

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person's relationship to you and the name of the crime and sentence

imposed, including probation." (C. 57-58; J.D.H.'s juror questionnaire.)

According to Belcher, J.D.H. failed to include the following

information about his son on the juror questionnaire: "[o]n March 15,

2018, J.D.H.'s son, P.D.H., was arrested in Jefferson County for first-

degree theft of property" and was released on bond on March 26, 2018;

"[o]n March 26, 2018, P.D.H. was arrested for third-degree burglary in

Tuscaloosa County and placed in the Tuscaloosa County Jail and was

released on bond on May 8, 2018; "[o]n July 21, 2018, P.D.H. was arrested

for public intoxication in Tuscaloosa County and was released on bond

the next day"; and "[o]n August 14, 2018, P.D.H. was arrested for

carrying a pistol without a permit in Tuscaloosa County and was released

on bond." (C. 57-58.) Belcher further alleged that, "[o]n August 18, 2018,

this Court revoked P.D.H.'s bond on the burglary charge" and that he was

"placed back in the Tuscaloosa County Jail on August 27, 2018." (C. 58.)

"On October 25, 2018, P.D.H. [pleaded] guilty to the burglary and was

sentenced to 46 months split with 6 months to serve in the county jail,"

and to 90 days on the pistol charge, which was ordered to run

concurrently." (C. 58.) "On January 22, 2019, P.D.H. was released from

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jail and placed on probation." (C. 58.) Belcher then contended in his

petition that defense counsel "would have used a peremptory strike to

remove [J.D.H.] from the jury" had he known about P.D.H.'s arrests and

convictions. (C. 59.) In support of this contention, Belcher noted that

counsel struck "several other jurors who disclosed that their family

members had been charged with crimes." (C. 59 (citing C.C., M.H., T.T.,

T.C., and E.J.'s juror questionnaires).) According to Belcher, "[n]o one

who disclosed that they had a relative who had been convicted of a felony

served on the jury." (C. 59.)

Belcher further contended in his petition that if counsel had known

about P.D.H.'s arrests and convictions, counsel would have also learned

that P.D.H. and Belcher had been housed in the same cell and had a

dispute, which resulted in the changing of cells and Belcher and P.D.H.

avoiding each other, which, he said, jail records and a witness, James

Wilson, could have confirmed. Belcher also alleged that, because the

address listed for P.D.H. in court records was the same address listed for

J.D.H. on the venire list, "J.D.H. and P.D.H. lived together at the time of

Belcher's trial." (C. 60.) Belcher then speculated that "there is a

reasonable likelihood that P.D.H. discussed his interactions with Belcher

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at the jail with J.D.H. before or during Mr. Belcher's trial." Belcher

complained that this "extraneous information also violates [his] rights to

a fair trial and an impartial jury." (C. 60.)

In its order summarily dismissing Belcher's petition, the circuit

court found that this juror-misconduct claim was insufficiently pleaded

and "merely speculative." (C. 706-07.) We agree that Belcher did not

meet his burden of pleading his juror-misconduct claim with specific facts

that, if true, would entitle him to an evidentiary hearing.

"The proper standard for determining whether juror misconduct

warrants a new trial ... is whether the misconduct might have prejudiced,

not whether it actually did prejudice, the defendant." Ex parte Dobyne,

805 So. 2d 763, 771 (Ala. 2001). However, we need not consider whether

Belcher pleaded facts that, if true, might have prejudiced him had they

been known because Belcher did not plead any facts to show that J.D.H.

was aware of P.D.H.'s criminal history and interactions with Belcher,

much less that he failed to answer the questionnaire truthfully. Belcher

alleged that P.D.H. was arrested and convicted for crimes near the time

of Belcher's trial, in 2018 and 2019, and, moreover, that P.D.H., for a

time, shared a cell and had "negative" interactions with Belcher. Belcher

20 CR-2023-0206

even alleged that had counsel known this information he would have

used a peremptory challenge or even struck J.D.H. for cause. However,

these allegations rest on layers of speculation.

"First and foremost, when pursuing a claim of juror misconduct, the

[defendant] must establish the misconduct actually occurred." Jackson

v. State, 133 So. 2d 420, 441 (Ala. Crim. App. 2009). " 'A defendant

[seeking relief] on the basis of juror misconduct has the initial burden to

prove that a juror or jurors did in fact commit the alleged misconduct.' "

Id. (quoting Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997)). "Parties

... are entitled to true and honest answers to their questions on voir dire."

Ex parte Dobyne, 805 So. 2d at 771. But, for any juror misconduct to

occur, the juror must first know about the information and fail to

truthfully disclose it. Id. Belcher, however, never alleges that J.D.H.

was aware of P.D.H.'s alleged recent arrests and convictions. Rather, he

speculates that J.D.H. was aware based on his familial relationship to

P.D.H. and the fact that P.D.H. had provided his father's address on an

unknown document and his further speculation that P.D.H.'s having

provided his father's address meant that they actually lived together. (C.

60.) Here, Belcher never alleges that J.D.H. was aware of any of his son's

21 CR-2023-0206

arrests, much less that P.D.H. had told him about interactions with

Belcher in jail. Rather, Belcher speculates that J.D.H. was aware of

P.D.H.'s arrests based on unspecified "court records" indicating that

P.D.H. had provided the same address that J.D.H. provided as a juror

and that he "believed" they lived together. (C. 60.) Belcher does not

allege that J.D.H. actually knew about P.D.H.'s criminal difficulties, such

as by alleging that he posted P.D.H.'s bond or paid for his counsel or

appeared at hearings with P.D.H. Rather, Belcher speculates that,

because P.D.H. provided his father's address as his residence in a court

record, P.D.H. must have lived with his father and, further, that his

father must have been aware of those arrests. This is pure speculation.

Belcher alleged no facts to show that J.D.H. knew P.D.H.'s criminal

information, much less that J.D.H. was aware of P.D.H.'s alleged

interactions with Belcher, particularly when the petition notes that at

least one of the arrests occurred in a different county. (C. 58.) See

Brownfield v. State, 266 So. 3d 777, 792-93 (Ala. Crim. App. 2017)

(" 'Unless a juror is asked a question which applies to him in a manner

demanding response, it is permissible for a juror to remain silent; the

juror is under no duty to disclose.' "(quoting Parish v. State, 480 So. 2d

22 CR-2023-0206

29, 30 (Ala. Crim. App. 1985))). It is also notable that J.D.H. was

forthcoming during voir dire when asked if anyone had seen or heard

information about the case, stating that he had hunted in the area and

had heard rumors from others about the case, which he explained in

detail. He explained that the information he had heard or read about

was "around the time that … [i]t happened," but not since that time. (TR.

196.) He indicated that he did not know of anything that would affect his

ability to be fair and impartial and that he could set aside any extraneous

"scuttlebutt" he had heard. J.D.H. further stated during voir dire that

he did not know any of the people involved personally and had no opinion

about what happened, making Belcher's speculations that J.D.H. knew

about his son's negative interactions with Belcher even less likely.

Belcher simply did not plead any facts that J.D.H. was, in fact, aware of

any criminal matters regarding P.D.H., much less that J.D.H. was aware

of his son's alleged acquaintance with Belcher from jail. Belcher thus

failed to plead facts that, if true, showed juror misconduct.

Second, "[t]he form of prejudice that would entitle a party to relief

for a juror's nondisclosure or falsification in voir dire would be its effect,

if any, to cause the party to forgo challenging the juror for cause or

23 CR-2023-0206

exercising a peremptory challenge to strike the juror." Ex parte Dobyne,

805 So. 2d at 772. Again, Belcher failed to plead facts that, if true,

indicate that he might have been prejudiced. Indeed, Belcher never

pleaded, including in his response to the State's motion to dismiss, that

trial counsel would have followed up with additional questions if J.D.H.

had disclosed his son's criminal history on the juror questionnaire.

Belcher alleged no facts to support his speculation that, if J.D.H. had

elaborated and provided information about the recent arrests of his son

on his questionnaire, trial counsel would have inquired further, much

less that they would have discovered any negative information about

Belcher. See generally Mashburn v. State, 148 So. 3d 1094, 1125 (Ala.

Crim. App. 2013) ("Speculation is not sufficient to satisfy a Rule 32

petitioner's burden of pleading."). Indeed, the trial record refutes such

speculation.

Trial counsel asked numerous questions during voir dire but never

asked the prospective jurors about whether any of them or their family

members or close friends had ever been arrested, charged, or convicted of

crimes or asked additional questions of those who had responded

affirmatively to these questions on their juror questionnaires. (TR. 335-

24 CR-2023-0206

55.) Belcher's counsel did not ask jurors G.L., L.L., M.P., or P.S.4 any

follow-up questions during voir dire about the affirmations in their

questionnaires that they had family members who had been arrested

and/or convicted of crimes. Thus, even if J.D.H. was aware of and had

disclosed P.D.H.'s arrests, there is nothing in the record to suggest that

counsel would have then asked J.D.H. questions about his son's arrests,

much less that further questioning would have elicited the alleged

"negative" information P.D.H. had about Belcher, even assuming that

P.D.H. had actually lived with J.D.H. and, moreover, assuming that

P.D.H. had shared this negative information with J.D.H. See Brownfield,

266 So. 3d at 794 ("That counsel did not question half of the venire about

whether anyone had been a crime victim strongly indicates that counsel

did not believe that being a crime victim was a material consideration.").

Belcher's counsel also did not challenge other jurors who had

reported familial or personal criminal histories in their questionnaires 5 -

4There was no P.M. on the jury; thus, although the circuit court's

order dismissing Belcher's petition refers to P.M., it appears that the circuit court was referring to P.S., the only juror whose first name began with a "P." (TR. 382.)

5Although Belcher notes in his brief that he struck five prospective

jurors who noted that family members had been convicted of crimes (C.C., 25 CR-2023-0206

- namely, G.L., L.L., M.P., and P.S. (C. 707; Juror questionnaires.) See

Brownfield, 266 So. 3d at 794 ("Although rarely is the answer to a single

question during voir dire dispositive when selecting a jury, the fact that

the information not disclosed by the juror in question had been disclosed

by another juror who was not struck by defense counsel certainly

undermines any claim that the nondisclosed information was material to

counsel when selecting the jury.").

M.H., T.T., T.C., and E.J.), as already stated, those prospective jurors were not the only ones with family members who had been arrested or convicted of crimes. Moreover, those jurors' responses strongly suggest that they were struck by the defense for reasons other than their family members' criminal history. C.C. indicated that she was strongly in favor of the death penalty and that, "[i]f someone kills someone, I don't feel that they should get to live"; E.J. was also strongly in favor of the death penalty, stating that "[i]f you kill someone in Cold Blood, why should we feed and clothe them for years" and that drug use could increase her likelihood of voting for the death penalty"; and C.C. and E.J. were individually questioned about their responses regarding the death penalty during voir dire. (See Juror questionnaires; TR. 248, 258-63.) M.H., T.T., and T.C. identified as politically conservative churchgoers; M.H. had family and/or friends who had worked in law enforcement; T.T. said that he was "very conservative and during voir dire responded that when he saw Belcher he wondered what Belcher had done"; and T.C. wrote that a defendant might be hiding something if he chose not to testify. (See Juror questionnaires.) And, although Belcher notes in his brief that counsel used its final strike on M.P., making her an alternate, M.P. had identified as politically conservative and stated in her questionnaire that it is "odd" for someone to not want to "explain or defend yourself."

26 CR-2023-0206

Finally, J.D.H. responded "yes" to the question regarding whether

he knew anyone who had been convicted or had pleaded guilty to a crime

but did not elaborate in the space provided, as instructed. Thus, trial

counsel was aware that J.D.H. knew someone who had been convicted of

or had pleaded guilty to a crime.6 If counsel desired further information

about this in striking the jury, trial counsel could have asked J.D.H.

during voir dire but did not. Counsel could have asked whether J.D.H.

did not elaborate because he was referring to himself, which he had

already explained in the two previous questions regarding whether he or

a family member had ever been arrested or convicted, or whether J.D.H.

was referring to another family member and, if so, counsel could have

asked this person's identity and the details of their conviction. (Juror

questionnaire, questions 29, 30, 32.) See, e.g., Jones v. State, 753 So. 2d

1174, 1203 (Ala. Crim. App. 1999) (rejecting a juror misconduct claim

partly because "Jones had been informed that J.M. knew the victims and

6On his juror questionnaire, J.D.H. noted that he had been arrested

and had pleaded guilty to a misdemeanor, not a felony, in the past and that he had a son who worked in construction; and he responded "yes" to whether he knew someone who had been convicted or had pleaded guilty to a crime, but he did not state whom he was referring to or when and where this occurred. 27 CR-2023-0206

counsel could have explored during voir dire examination the basis of

that knowledge").

In sum, it was Belcher's burden to plead facts that, if true, entitled

him to relief, and Belcher failed to meet this burden, merely speculating

that J.D.H. was likely aware of P.D.H.'s recent arrests and convictions,

that J.D.H. and P.D.H. likely lived together, that P.D.H. had likely

shared his jail experiences with his father, and that, had J.D.H. provided

his son's criminal history on the juror questionnaire, counsel likely would

have asked for additional details and then likely discovered that P.D.H.

had once shared a jail cell with Belcher and that they had negative

interactions. The circuit court thus properly summarily dismissed this

claim.

II. Equitable Tolling

Belcher next contends that the circuit court erred by not accepting

an amendment to his petition in which he alleged a new juror-misconduct

claim regarding a different juror. Belcher argues that he was entitled to

"equitable tolling of the deadline to amend" and that the court's refusal

to allow his amendment violated his constitutional "rights to due process,

equal protection, meaningful review of his capital conviction and death

28 CR-2023-0206

sentence, and effective assistance of postconviction counsel in violation of

the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution and Alabama law." (Belcher's brief, p. 23.)

On September 17, 2021, approximately four months after filing his

petition for postconviction relief, Belcher filed an amendment to Claim I

of his petition, arguing that the COVID-19 pandemic had prevented him

"from conducting the investigation necessary to uncover the juror

misconduct claim that he presents in this amendment," and that

equitable tolling was therefore warranted, and requesting that the circuit

court accept his amendment. (C. 526-33.) The State moved to strike

Belcher's amendment, contending that, under the FJA and Rule 32.2(b),

Ala. R. Crim. P., Belcher's amendment should not be permitted. (C. 535-

36.) In its order summarily dismissing Belcher's petition, the circuit

court denied Belcher's amendment, finding that, under the FJA,

amendments are to be treated as successive petitions and that Belcher

had not met the requirements for filing a successive petition. (C. 705.)

We agree with the circuit court that Belcher did not satisfy the

requirements for filing a successive petition and further hold that the

circuit court did not err by not applying the doctrine of equitable tolling.

29 CR-2023-0206

Equitable tolling is applicable neither to amendments nor to the filing

deadline under the FJA, and Belcher has also waived any argument that

the circuit court's refusal to accept his amendment violated his

constitutional rights.7

In 2017, the FJA statutorily established the procedures governing

postconviction proceedings for criminal defendants who are convicted of

capital murder and sentenced to death after August 1, 2017. See Ex parte

Marshall, 323 So. 3d 1188, 1190 (Ala. 2020) ("The FJA governs petitions

for postconviction relief under Rule 32, Ala. R. Crim. P., in death-penalty

cases."). The FJA provides:

7Belcher merely makes a one-sentence contention that, by not allowing his amendment, the circuit court "violated his rights to due process, equal protection, meaningful review of his capital conviction and death sentence, and effective assistance of postconviction counsel in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Alabama law." He gives no explanation as to the applicable content of these constitutional provisions or how they were violated. Rule 28(a)(10), Ala. R. App. P., requires that an appellate argument must contain "the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." " '[A]rguments that do not comply with Rule 28(a)(10), Ala. R. App. P., are deemed waived.' " Wimbly v. State, 387 So. 3d 213, 256 (Ala. Crim. App. 2022) (quoting Hooks v. State, 141 So. 3d 1119, 1124 (Ala. Crim. App. 2013)). This argument by Belcher does not comply with Rule 28(a)(10); accordingly, the "argument" is waived on appeal. 30 CR-2023-0206

"(a) Rule 32.2(c) of the Alabama Rules of Criminal Procedure shall not apply to cases in which a criminal defendant is convicted of capital murder and sentenced to death, and files a petition for post-conviction relief under the grounds specified in Rule 32.1(a), (e), or (f) of the Alabama Rules of Criminal Procedure.

"(b) Post-conviction remedies sought pursuant to Rule 32 of the Alabama Rules of Criminal Procedure in death penalty cases shall be pursued concurrently and simultaneously with the direct appeal of a case in which the death penalty was imposed. In all cases where the defendant is deemed indigent or as the trial judge deems appropriate, the trial court, within 30 days of the entry of the order pronouncing the defendant's death sentence, shall appoint the defendant a separate counsel for the purposes of post- conviction relief under this section. ...

"(c) A circuit court shall not entertain a petition for post- conviction relief from a case in which the death penalty was imposed on the grounds specified in Rule 32.1(a) of the Alabama Rules of Criminal Procedure unless the petition, including any amendments to the petition, is filed within 365 days of the filing of the appellant defendant's first brief on direct appeal of a case in which the death penalty was imposed pursuant to the Alabama Rules of Appellate Procedure.

"(d) A circuit court, before the filing date applicable to the defendant under subsection (c), for good cause shown and after notice and an opportunity to be heard from the Attorney General, or other attorney representing the State of Alabama, may grant one 90-day extension that begins on the filing date applicable to the defendant under subsection (c).

"(e) Within 90 days of the filing of the state's answer to a properly filed petition for post-conviction relief, the circuit court shall issue an order setting forth those claims in the

31 CR-2023-0206

petition that should be summarily dismissed and those claims, if any, that should be set for an evidentiary hearing. If the properly filed petition for post-conviction relief is still pending at the time of the issuance of the certificate of judgment on direct appeal, the court in which the petition is pending shall issue a final order on the petition or appeal within 180 days.

"(f) If post-conviction counsel files an untimely petition or fails to file a petition before the filing date applicable under this section, the circuit court shall direct post-conviction counsel to show good cause demonstrating extraordinary circumstances as to why the petition was not properly filed. After post-conviction counsel's response, the circuit court may do any of the following:

"(1) Find that good cause has been shown and permit counsel to continue representing the defendant and set a new filing deadline for the petition, which may not be more than 30 days from the date the court permits counsel to continue representation.

"(2) Find that good cause has not been shown and dismiss any untimely filed petition.

"(3) Appoint new and different counsel to represent the defendant and establish a new filing deadline for the petition, which may not be more than 270 days after the date the circuit court appoints new counsel. In the instance that this subdivision is applicable and new counsel is appointed, the circuit court in which the petition is pending shall issue a final order on the petition or appeal within 180 days of the filing of the petition.

"(g) The time for filing a petition for post- conviction relief under Rule 32.1(f) in a case in

32 CR-2023-0206

which the death penalty was imposed shall be six months from the date the petitioner discovers the dismissal or denial, irrespective of the deadlines specified in this section. This provision shall not extend the deadline of a previously filed petition under Rule 32.1 of the Alabama Rules of Criminal Procedure.

"(h) Any petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section is untimely. Rule 32.7(b) of the Alabama Rules of Criminal Procedure shall not apply to any amendments to a petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section. Any amendments to a petition for post- conviction relief filed pursuant to this section filed after the filing date that is applicable to the defendant under this section shall be treated as a successive petition under Rule 32.2(b) of the Alabama Rules of Criminal Procedure.

"(i) The circuit court shall not entertain a petition in a case in which the death penalty has been imposed based on the grounds specified in Rule 32.1(e) of the Alabama Rules of Criminal Procedure unless the petition for post-conviction relief is filed within the time period specified in subsection (c) or (d), or within six months after the discovery of the newly discovered material facts, whichever is later.

"(j) This section shall apply to any defendant who is sentenced to death after August 1, 2017."

§ 13A-5-53.1.

33 CR-2023-0206

The FJA clearly prohibits circuit courts from entertaining a

petition, "unless the petition, including any amendments to the petition,

is filed within 365 days of the filing of the appellant defendant's first brief

on direct appeal." § 13A-5-53.1(c) (emphasis added). There are limited

exceptions to this prohibition. For example, circuit courts are permitted

to grant "one 90-day extension," but only "for good cause shown and after

notice and an opportunity to be heard from the [State]." § 13A-5-53.1(d)

(emphasis added). The FJA thus forecloses any application of equitable

tolling to a filing deadline for a petition because it expressly establishes

the limited circumstances in which a circuit court may, in its discretion,

find good cause for the untimely filing of a petition and establish a new

deadline and, in some cases, appoint new counsel. (Notably, even when

new counsel is appointed, the petition is to be filed "not more than 270

days after the date the circuit court appoints new counsel." § 13A-5-

53.1(f)(3). The FJA further expressly includes amendments in its 365-

day filing deadline for petitions and expressly excludes any application

of Rule 32.7(b) (which permits amendments in non-death-penalty

postconviction proceedings "at any stage of the proceedings prior to the

entry of judgment") to amendments in death-penalty postconviction

34 CR-2023-0206

proceedings, stating: "Rule 32.7(b) of the Alabama Rules of Criminal

Procedure shall not apply to any amendments to a petition for

postconviction relief filed ... after the filing date." § 13A-5-53.1(h)

(emphasis added). Instead, under the FJA, "[a]ny amendments to a

petition for post-conviction relief filed pursuant to this section filed after

the filing date ... shall be treated as a successive petition under Rule

32.2(b) of the Alabama Rules of Criminal Procedure." § 13A-5-53.1(h)

(emphasis added).

Rule 32.2(b), Ala. R. Crim. P., provides, in pertinent part:

"The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice."

Before addressing Belcher's equitable-tolling arguments, we

initially note that Belcher could have attempted to show the circuit court

that his amendment satisfied the requirements for a successive petition

under Rule 32.2(b). However, as the circuit court recognized, Belcher has

35 CR-2023-0206

never attempted, including in his brief to this Court, to explain how his

amendment satisfied the requirements of a successive petition. Thus, we

need not consider those requirements because Belcher wholly relies on

the doctrine of equitable tolling, as articulated in Ex parte Ward, 46 So.

3d 888, 896 (Ala. 2007). Belcher's reliance, however, is misplaced because

the reasons for applying equitable tolling to extend a filing deadline in

postconviction proceedings governed by Rule 32, Ala. R. Crim. P., do not

apply in postconviction proceedings governed by the FJA.

In Ex parte Ward, the Alabama Supreme Court recognized that,

although "the limitation provision of Rule 32.2(c) is an affirmative

defense and not a jurisdictional bar," "it is nonetheless written in

mandatory terms." 46 So. 3d at 896. The Alabama Supreme Court held

that, because Rule 32.2(c) was not a jurisdictional bar, "equitable tolling

is available in extraordinary circumstances that are beyond the

petitioner's control and that are unavoidable even with the exercise of

diligence." Id. at 897 (emphasis added). In so holding, the Alabama

Supreme Court noted that federal courts have also held that equitable

tolling was applicable, in "extraordinary circumstances," in federal

habeas proceedings governed by 28 U.S.C. § 2244, "notwithstanding that

36 CR-2023-0206

the word 'shall' appears." Id. at 896-97 (emphasis added). See, e.g.,

Sandvik v. United States, 177 F. 3d 1269 (11th Cir. 1999). The Alabama

Supreme Court emphasized that "the threshold necessary to trigger

equitable tolling is very high, lest the exceptions swallow the rule." Id.

at 897 (quoting United States v. Marcello, 212 F. 3d 1005, 1010 (7th Cir.

2000)).

Belcher fails to acknowledge that, under the FJA, Rule 32.2(c) does

"not apply to cases in which a criminal defendant is convicted of capital

murder and sentenced to death." § 13A-5-53.1(a) (emphasis added). The

legislature has made clear that the filing deadline in postconviction

proceedings governed under the FJA is not to be treated the same way

that a filing deadline is to be treated under Rule 32.2(c). There is a stark

difference between the FJA's mandatory provisions and the mandatory

provisions in Rule 32 or § 2244. First, neither Rule 32 nor § 2244

expressly provide for the appointment of postconviction counsel. The FJA

expressly provides for postconviction counsel to be appointed within 30

days of the imposition of a death sentence, which should minimize the

occurrence of "extraordinary circumstances" that would prevent

petitioners from meeting the filing deadline. Second, unlike Rule 32 or §

37 CR-2023-0206

2244, which do not provide for any extensions, the FJA anticipates

"extraordinary circumstances" and expressly permits one 90-day

extension for "good cause demonstrating extraordinary circumstances."

§ 13A-5-53.1(d) (emphasis added). Third, unlike Rule 32 or § 2244, the

FJA itself provides that a defendant who files an untimely petition may

"show good cause demonstrating extraordinary circumstances as to why

the petition was not properly filed" and provides courts with discretion,

upon a finding of "good cause," to grant another 30-day extension or even

appoint new counsel and allow the petitioner up to 270 additional days

after that appointment for the filing of a petition. § 13A-5-53.1(f). Thus,

equitable tolling has no application to postconviction proceedings filed

under the FJA because the FJA has already recognized that

"extraordinary circumstances" could arise and has established remedies

for those circumstances, including extensions of the filing deadline.

Accordingly, we hold that the FJA's provisions allowing for the extension

of its filing deadline for "good cause demonstrating extraordinary

circumstances" render equitable tolling both unnecessary and

inapplicable to postconviction proceedings under the FJA.

38 CR-2023-0206

Separation-of-powers principles also support our holding that

equitable tolling does not apply to the FJA's filing deadline. Unlike Rule

32, which was promulgated by the Alabama Supreme Court, the FJA is

a statute promulgated by the legislature. The FJA's provisions already

provide courts the discretion to consider "extraordinary circumstances"

and provide specific remedies, including extensions of the filing deadline,

upon a finding of "good cause demonstrating the extraordinary

circumstances." It is not within the province of the judiciary to disregard

those express provisions -- unless those provisions are themselves

unconstitutional.8 See, e.g., Ex parte Bailey, [Ms. CR-2024-0635, May 2,

2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025) ("[T]his Court will not

substitute itself for the Legislature and judicially impose a remedy for

noncompliance when the Legislature has failed to speak unless

noncompliance offends minimum standards of due process.").

In sum, application of the judicially created doctrine of equitable

tolling, which is applicable in postconviction proceedings governed by

Rule 32, is not applicable in postconviction proceedings governed by the

8The constitutionality of the FJA is addressed in Part VI of this

opinion. 39 CR-2023-0206

FJA. The FJA specifically recognizes the need for equitable exceptions,

provides the standards governing those exceptions, and provides specific

remedies when extraordinary circumstances are demonstrated.

Equitable tolling is also inapplicable to the treatment of

amendments under the FJA. In the criminal context, "[t]he doctrine of

equitable tolling is an exception only to the limitations provision of Rule

32.2(c), Ala. R. Crim. P." State v. Baker, 172 So. 3d 860, 866 (Ala. Crim.

App. 2015) (emphasis added). We thus held in Baker that the doctrine of

equitable tolling "does not provide a basis for overcoming the bar against

successive claims under Rule 32.2(b), Ala. R. Crim. P." Id. (emphasis

added). We noted that "neither the Alabama Rules of Criminal

Procedure, nor the decisions of this Court, nor the decisions of the

Alabama Supreme Court have carved out any 'equitable' exception to

Rule 32.2(b) [governing successive petitions], Ala. R. Crim. P." Id. This

Court then rejected Baker's contention that, because the Rule 32.2

grounds for preclusion had been held to be mandatory and "not

jurisdictional," see Ex parte Clemons, 55 So. 3d 348 (Ala. 2007), circuit

courts should have the power to apply equitable tolling to the Rule 32.2(b)

grounds of preclusion. We explained that the phrase " 'not jurisdictional'

40 CR-2023-0206

... does not mean ... that the circuit court may choose to disregard a

ground of preclusion that has been properly asserted by the State and

has not been subsequently disproved by the petitioner by a

preponderance of the evidence." Baker, 172 So. 3d at 866. Rather, we

explained that, although "the State's failure to properly raise a ground of

preclusion constitutes a waiver of that affirmative defense," "Clemons

did not hold that a properly asserted ground of preclusion, which is not

subsequently disproved, could be simply disregarded by a circuit court if

it so chose." Id. at 866-67. "[I]f a ground of preclusion has been properly

asserted and has not been waived by the State, a circuit court cannot

simply choose to disregard that ground." Id. at 867.

Here, the FJA requires that Belcher's amendment be treated as a

successive petition under the FJA, and the State pleaded that Belcher

had not met the requirements of a successive petition. As we held in

Baker, "equitable tolling" does not provide a basis for overcoming the bar

against successive claims. 9

9Contrary to Belcher's assertion in his reply brief that the State

never pleaded that the amendment was precluded as a successive petition (Belcher's reply brief, p. 12), on September 22, 2021, the State moved to strike Belcher's amendment on the ground that it must meet the requirements of a successive petition and that "Belcher has made 41 CR-2023-0206

Finally, it is also noteworthy that, even if equitable tolling were

applicable to either the filing deadline or the treatment of amendments

under the FJA, Belcher never set forth sufficient facts that would qualify

him for equitable tolling. Belcher generally contends that the COVID-19

pandemic impeded his ability to investigate and present his

postconviction claims, but he never set forth any specific allegations

regarding why he was unable to discover the facts contained in his

amendment before or during the COVID-19 restrictions. Even in his brief

on appeal, the closest Belcher comes to making any specific allegation

regarding how he was impeded from getting information is his general

contention that, "for over a year leading up to [his] deadline, conducting

the extended, in-person interviews necessary to investigate post-

conviction claims was not considered safe by public health officials."

(Belcher's brief, p. 20.) It is entirely unknown why Belcher could not have

discovered the claim made in his amendment in time to present it in his

petition, for which he had already received his one 90-day extension

under the FJA. Stated differently, "[n]othing before us indicates that [he]

absolutely no [such] showing." (C. 535-38). Thus, the State did not "waive" this ground of preclusion. 42 CR-2023-0206

could not have obtained the [information] over the telephone or wearing

masks and employing social distancing." Ex parte Miller, 335 So. 3d

1151, 1155 (Ala. 2021) (holding, in a civil case, that "there is nothing

suggesting that any administrative order of this Court operated to

suspend the jurisdictional deadline applicable to a ruling on Mitchell's

postjudgment motion .... Instead, our [COVID-19] orders explained that

they were not intended to affect established 'jurisdictional limitations

provided for by statute or rule' "). In short, Belcher failed to plead any

facts that would entitle him to equitable tolling, even if equitable tolling

were applicable in postconviction proceedings governed by the FJA,

which we have held it is not.

For all these reasons, Belcher is not entitled to relief on this claim.

III. Penalty-Phase Ineffective-Assistance Claims

Belcher also contends that the circuit court erroneously dismissed

his multiple penalty-phase ineffective-assistance-of-counsel claims

without a hearing.

In considering Belcher'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)

43 CR-2023-0206

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 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.

44 CR-2023-0206

" ' "[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).

" '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

45 CR-2023-0206

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)."

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.' "

Gaddy v. State, 952 So. 2d 1149, 1171 (Ala. Crim. App. 2006) (quoting

Wiggins v. Smith, 539 U.S. 510, 534 (2003), quoting in turn Strickland v.

Washington, 466 U.S. 668, 694 (1984)).

In reviewing Belcher's ineffective-assistance claims, we again note

that the same judge who presided over Belcher's capital-murder trial and

sentencing hearing (and who, ultimately, sentenced Belcher to death

46 CR-2023-0206

after independently weighing the aggravating and mitigating

circumstances following the jury's unanimous recommendation of the

death penalty) also ruled on Belcher's postconviction petition. The circuit

court, thus, considered Belcher's claims in light of its own personal

observations when it dismissed Belcher's myriad ineffective-assistance

claims because they were either meritless, insufficiently pleaded, or both.

With these considerations in mind, we review Belcher's claim that

the circuit court erroneously summarily dismissed each of the following

individual penalty-phase ineffective-assistance claims that were made by

Belcher in his postconviction petition and are further argued on appeal.

As explained below, we hold that the circuit court properly summarily

dismissed Belcher's penalty-phase ineffective-assistance-of-counsel

claims.

A. Counsel's Mitigation Investigation

Belcher first generally contends, as he did in his petition, that his

trial counsel failed to adequately investigate and present mitigation

evidence. In support of this claim, Belcher contends that counsel

"conducted in-person interviews with only three family members" -- his

mother, his father, and his ex-wife. (Belcher's brief, p. 30.) Belcher

47 CR-2023-0206

further contends that his sister was "interviewed only once by phone" and

that counsel failed to "collect basic records ... court records, school

records, medical records, military records, drug-treatment records, police

records, and jail records," which, he says, left counsel "unaware of

important mitigating facts." (Belcher's brief, p. 30.)

We initially question whether Belcher's contentions in his petition

and his brief on appeal, and his generalized assertion that the circuit

court improperly dismissed this claim based on "strategy" when, he says,

counsel's failure to investigate rendered counsel unable to make a

"strategic decision," and his citing cases discussing the obligation to

conduct a mitigation investigation, with no explanation as to their

holdings or applicability here, is sufficient to comply with Rule 28(a)(10),

Ala. R. App. P. See e.g., McWhorter v. State, 142 So. 3d 1195, 1237 (Ala.

Crim. App. 2011). Nonetheless, even if Belcher's argument satisfied the

specificity requirements of Rule 28(a)(10), based on the record and the

circuit court's findings in its order, Belcher's "argument is inconsistent

with the defense theory of the case or [the facts and theories that he

contends should have been presented] would have been otherwise

cumulative." Id. at 1237.

48 CR-2023-0206

In considering Belcher's myriad penalty-phase claims regarding

mitigation evidence, we recognize that "[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. 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).

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.

49 CR-2023-0206

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).

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)).'

50 CR-2023-0206

"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, 80 So. 3d at 979,

quoting in turn Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir.

In its sentencing order, the trial court (we again note that the

circuit court judge who ruled on Belcher's postconviction petition was also

the trial court judge) noted that, on March 14, 2019, the jury

unanimously found Belcher guilty of capital murder during a kidnapping.

(TC. 150.) The penalty phase began the next day before the same jury,

and "[t]he State moved that all evidence presented in the guilt phase be

considered by the jury in the penalty phase, which was granted." (TC.

51 CR-2023-0206

150-51.) The trial court's sentencing order then summarized the evidence

presented at the penalty phase, in pertinent part, as follows.

"The State presented evidence of two aggravating circumstances: 1) that the capital offense was committed while the Defendant was engaged in a Kidnapping in the First Degree; and (2) that the capital offense was especially heinous, atrocious, or cruel compared to other capital cases. The State presented testimony from the victim's mother, Suzanne Payne, and from West Alabama Violent Crimes Unit Inv. Richard Wilkins. ...

"[Belcher] presented evidence in mitigation from the following witnesses: Tuscaloosa County Sheriff's Deputy Mike Byars, R. Randall Griffith, Vicky Belcher, Brad Belcher, Brandy Belcher, Debby Hicks, and Carol Belcher. ...

"The Court provided the jury with two verdict forms. The first being a 'Special Verdict Form' in order to determine whether the State had unanimously satisfied the jury beyond a reasonable doubt that the instant case was a capital offense that was especially heinous, atrocious and cruel compared to other capital offenses. A second verdict form was given, a general verdict form, in order to determine whether the jury would render an advisory verdict of death or life imprisonment without the possibility of parole; including the numbers of jurors so voting for those options.

"After due deliberations, the jury returned a verdict that they were unanimously satisfied beyond a reasonable doubt that the capital offense … was especially heinous, atrocious and cruel compared to other capital offenses. Moreover, the jury returned an advisory verdict recommending to the Court that the penalty in [Belcher's] case should be death. Twelve jurors voted in favor of death. None voted in favor of life imprisonment without the possibility of parole. The jury was polled as to the aggravating circumstance of heinous,

52 CR-2023-0206

atrocious and cruel, and the verdict was unanimous. The jury was further polled as to the 12-0 advisory verdict of death ....

"During the penalty phase of the trial, the State offered all evidence admitted in the guilt phase ... The motion was granted. In doing so, the State presented evidence of one aggravating circumstance -- under § 13A-5-49(4), [Ala. Code 1975,] a capital offense was committed while the defendant was engaged in a kidnapping.

"Th[e State] also presented evidence from Inv. Richard Wilkins, who had testified during the guilt phase. Inv. Wilkins testified that he had been an investigator in [the] Violent Crimes Unit since 2012. He testified that no other case in his experience and memory demonstrated the level of violence, cruelty and torture as found in this case. In doing so, the State presented evidence of a second aggravating circumstance -- under § 13A-5-49(8), the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses.

"The State also offered additional testimony from Suzanne Payne, the victim's mother.

"The Defendant offered the following testimony in mitigation:

"Tuscaloosa County Sheriff's Deputy Mike Byars: Deputy Byars testified regarding his interactions with [Belcher] during [Belcher's] incarceration. The deputy recalled one outburst of anger from [Belcher], for which he soon apologized. He testified [Belcher] was a well-behaved inmate.

"Dr. Randall Griffith: Dr. Griffith testified he diagnosed [Belcher] with Mild Neuro-Cognitive Disorder. This disorder can affect thinking ability and memory. The disorder can cause a person to be impulsive and paranoid. Dr. Griffith

53 CR-2023-0206

believes this disorder arose in [Belcher] because of multiple head injuries he sustained while racing motorcycles. Dr. Griffith conceded that [Belcher's] cognitive problems could also be caused by drug use.

"….

"Brad Belcher: [Belcher's] father testified about the close relationship he had with his son in early years. [Belcher] learned to ride and race motorcycles at an early age. He testified that, as an adult, [Belcher] changed dramatically after getting married and having a daughter. He became a doting father. However, after [Belcher] divorced and lost primary custody of his child, it became the darkest time in [Belcher's] life. Belcher testified that he did not know the extent of his son's drug problems until these events occurred.

"Brandy Belcher: [Belcher's] younger sister testified that her brother is kind and loving. He loves animals. He is a very talented mechanic.

"Debby Hicks: Hicks is [Belcher's] aunt. She testified [Belcher] was always kind and protective of her daughter; his younger cousin. She also testified that he was a doting father with his own child.

"Carol Belcher: [Belcher's] mother testified she had seen a change in him since he had been [in] jail. His Christian faith had grown. She said they pray together on the phone.

"All family members testified of their desire to maintain a strong relationship with [Belcher] should he be sentenced to life in prison."

(C. 33-34, 43-45.)

54 CR-2023-0206

The trial court stated its findings from the sentencing

hearing, in pertinent part, as follows.

"The Court reviewed the sentencing memorandum filed April 1st on behalf of the Defendant. The pre-sentence report prepared by the probation office was admitted as a Court exhibit in these proceedings. The Court having been the trial court and having heard all testimony in this matter adopts all evidence previously presented in the guilt phase and the penalty phase, both proceedings being held before the Court and the evidence being presented before the jury in both hearings is incorporated in this hearing and is to be considered by the Court in affixing punishment.

"The State called no witnesses. The Defendant called no witnesses but offered the sentencing memorandum as an exhibit in these proceedings. No further argument was made by either the State or the Defendant. When the Court asked the Defendant if he had anything to say before sentence was pronounced, he made a brief statement, professing his Christian faith and apologizing for the events leading to the victim's death.

"All the above was considered by the Court in making the following findings regarding aggravating and mitigating circumstances."

(TR. 163-64.)

The trial court found that the aggravating circumstance that the

murder was committed during a kidnapping, under § 13A-5-49(4), Ala.

Code 1975, applied, "as unanimously determined by the jury during the

guilt phase" and that the aggravating circumstance that the capital

55 CR-2023-0206

offense was especially heinous, atrocious, or cruel compared to other

capital offenses applied, "as unanimously determined by the jury during

the penalty phase." (C. 47.) The trial court then found, in pertinent part,

the following statutory mitigating circumstances:

"Mitigating circumstance number one, under § 13A-5- 51(1), [Ala. Code 1975,] the defendant has no significant history of prior criminal activity, does apply and was given its due weight.

"Mitigating circumstance number two, under § 13A-5- 51(2), the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance, does not apply. The Court has considered the opinion that the Defendant suffers from Mild Neuro-Cognitive Disorder. However, the Court is not convinced from the evidence that any such disorder rises to the level of being an extreme mental or emotional disturbance such that it is a statutory mitigating circumstance. Accordingly, the Court finds that the Defendant's diagnosis of Mild Neuro-Cognitive Disorder is a non-statutory mitigating circumstance.

"Mitigating circumstance number five, under § 13A-5- 51(5), the defendant acted under extreme duress or under the substantial domination of another person, does not apply.

"Mitigating circumstance number six, under § 13A-5- 51(6), the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, does not apply. As stated, the Court has considered the opinion that the Defendant suffers from Mild Neuro-Cognitive Disorder. However, the Court is not convinced from the evidence that

56 CR-2023-0206

any such disorder rises to the level of substantially diminishing the defendant's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, such that it is a statutory mitigating circumstance. The Court finds that the Defendant's drug usage is, instead, a non-statutory mitigating circumstance.

"Mitigating circumstance number seven, under § 13A-5- 51(7), the age of the defendant at the time of the crime, does not apply. The Defendant was thirty (30) years old at the time of the crime."

(C. 48-49.)

The trial court found the following nonstatutory mitigating

circumstances:

"Non-statutory mitigating facts under § 13A-5-52[, Ala. Code 1975,] can be wide-ranging and 'shall include any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers.' The Court has considered each non-statutory mitigator offered by Defendant to the extent it is supported by evidence. Those non-statutory mitigating circumstances found to be present, and considered by this Court include:

"The Defendant's desire to maintain a strong relationship with his daughter and his family, and desire of his daughter and family to maintain a strong relationship with him;

"The Defendant's good behavior as an inmate;

57 CR-2023-0206

"The Defendant's ability to be a productive prisoner in teaching mechanic skills to other prisoners and in leading Bible studies;

"The Defendant's Mild Neuro-Cognitive Disorder;

"The Defendant's drug usage;

"The sentences of co-Defendants pursuant to plea agreements, particularly the split sentence of co-Defendant Bruce;

"The pleas of mercy on the Defendant's behalf, made by his attorneys and family members. While it is impossible to quantify a plea for mercy, this Court finds that Defendant sufficiently raised the issue, and thus this Court has given Defendant's plea for mercy consideration.

"No other non-statutory mitigating circumstances exist. The Court specifically finds that the non-statutory mitigating circumstance of remorse does not exist in this case."

(C. 50-51.)

The trial court concluded:

"After consideration of all the matters presented to the Court, the testimony heard during the guilty phase and penalty phase of trial, both in mitigation and aggravation, the pre-sentence investigation report and the recommendation of the jury contained in its advisory verdict, and after taking into consideration all of the other matters that were proffered to this Court, disregarding any references to passion, or prejudice or emotion, the Court does now find and is convinced beyond a reasonable doubt that in this case the aggravating circumstances outweigh the mitigating circumstances, and the Court does concur with the jury's recommendation and

58 CR-2023-0206

does hereby affix Michael David Belcher's punishment at death, by lethal injection."

(TC. 169.)

Belcher's postconviction petition asserted that two witnesses

would have indicated that Belcher was remorseful for Samantha's death.

It is noteworthy that the trial court's sentencing order expressly found

that the nonstatutory mitigating circumstance of remorse did not exist in

Belcher's case. Even a cold reading of Belcher's testimony supports the

finding that Belcher was devoid of remorse. See, e.g., (TR. 965 (Belcher

told the others, "Don't kill her here [in his father's shop]")); (TR. 968 (He

had "no idea what they was doing" and "they" were doing everything; he

was just "watching")); (TR. 969-75 (Belcher acknowledged helping "them"

put Samantha in his car and transporting her to Watson's father's house,

putting her in the trunk of his car, stopping so they could put her back

when she somehow escaped the moving car, and eventually helping

Steven George place her in the woods, but he continually says that "they"

were hitting, kicking, pulling, stabbing, and jabbing her, and that he "just

went along")); and (TR. 990 (Belcher told the jury, "I just followed the

crowd")). Lack of remorse is appropriately considered when it

undermines mitigation evidence. See, e.g., White v. State, 179 So. 3d 170,

59 CR-2023-0206

233 (Ala. Crim. App. 2013) ("White's lack of remorse tended to undermine

mitigation evidence indicating that White suffered from impulse control

problems that may have contributed to Jasmine's murder."), and Hosch

v. State, 155 So. 3d 1048, 1096 (Ala. Crim. App. 2013) (rejecting Hosch's

claim that the trial court erroneously considered his lack of remorse,

based on "Hosch display[ing] little emotion at trial and express[ing] no

remorse," in its weighing of the nonstatutory mitigating circumstances).

Belcher did not testify at his penalty-phase hearing, but he spoke before

his sentence was pronounced, saying only that he loved Jesus and that

he was "sorry for the events that transpired on the 2nd of November 2015

for every participant and the families." (TR. 1211 (emphasis added).)

Notably, Belcher did not express guilt or ask forgiveness for his own role

in Samantha's murder, and he did not express specific sorrow for what

Samantha and her family suffered. Thus, in considering whether trial

counsel were ineffective for failing to present the mitigation evidence

pleaded in Belcher's petition, we note that the trial court's finding that

Belcher was not remorseful is another factor in assessing whether there

is a reasonable probability that the pleaded mitigation evidence, if

presented and true, would have resulted in a different sentence,

60 CR-2023-0206

particularly where, as here, the trial judge was also the circuit judge who

ruled on the postconviction petition.

Before considering Belcher's individual claims, we also note that

the record shows that Belcher's counsel employed a mitigation expert,

Dr. Griffith, to assist with the penalty phase. Moreover, the circuit court,

in its order summarily dismissing Belcher's petition, found that trial

counsel's mitigation investigation, strategy, and presentation of evidence

were reasonable. "[I]t is clear upon the face of the record and from what

the Court observed at trial that trial counsel chose a strategy of

emphasizing Belcher's positive qualities in a reasonable attempt to show

Belcher was a good, decent person who made a mistake but who could

still adapt and contribute to society with a sentence of life without

parole." (C. 789.)

The circuit court further explained in its order:

"Counsel put on evidence that Belcher is a good person (R. 1150-52, 1154-55), whose poor choices were informed by his mild neurocognitive disorder which impacts his thinking and memory capabilities (R. 1109-10); he has no significant criminal history (R. 1099); he has served in the military (C. 380-81; R. 1142-43); he is close with his family (R. 1142, 1147- 48, 1150, 1152, 1154-55, 1162, 1164-70); he has a daughter whom he loves and who loves him (R. 1139, 1140, 1144, 1148, 1151, 1155-56, 1163); he is a responsible father (R. 1143-44,

61 CR-2023-0206

1151, 1155); and importantly, he can adjust well to prison life.[10] (R. 1101-02, 110, 1115, 1117, 1138, 1169.)"

(C. 789.) Thus, trial counsel's strategy was not that Belcher was a person

whose sad circumstances had caused his actions and justified life

imprisonment without parole but, rather, was arguably the more

persuasive strategy that Belcher had truly changed since going to jail and

becoming sober, committing to Christ, participating in Bible studies, and

teaching other prisoners. In short, counsel attempted to show, and

expressly argued, that Belcher was, at the time of the trial, "a person

whose life is worth saving." (TR. 1099.) Moreover, counsel attempted to

show that Belcher's life should be spared by presenting the testimony of

six witnesses, including family and friends, a jail guard, and Dr. Griffith

(the neuropsychologist); presenting letters from family and friends, a

slideshow made by Belcher's mother, and a picture of Belcher's daughter;

and by preparing a sentencing memorandum. (TC. 396-402, 408-11; TR.

1095-1185.)

10More specifically, evidence was presented during the penalty phase that Belcher could be productive and helpful to other inmates, both spiritually, by leading and teaching Bible studies, and vocationally, by teaching mechanic skills. 62 CR-2023-0206

The circuit court did not abuse its discretion by finding that this

general claim, which is really nothing more than an attempt to fault trial

counsel for not pursuing a more exhaustive theory of mitigation, was

without merit. See, e.g., Bush v. State, 92 So. 3d 121, 160 (Ala. Crim.

App. 2009) (" 'The fact that this defense strategy was ultimately

unsuccessful with the jury does not render counsel's performance

deficient.' " (quoting Heath v. State, 3 So. 3d 1017, 1029 (Fla. 2009))). In

sum, the circuit court properly found that "defense counsel's strategy in

mitigation was reasonable and that additional evidence presented at the

postconviction hearing 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." McWhorter,

142 So. 3d at 1237.

Moreover, to the extent that Belcher also baldly contends on appeal

that the circuit court erred by failing to evaluate the cumulative effect of

counsel's alleged deficiencies, this claim is waived under Rule 28(a)(10).

It is also without merit because Alabama appellate courts do not apply a

" 'cumulative-effect analysis to claims of ineffective assistance of

counsel.' " Musgrove v. State, 144 So. 3d 410, 452 (Ala. Crim. App. 2012)

63 CR-2023-0206

(quoting Brooks v. State, 929 So. 2d 491, 514 (Ala. Crim. App. 2005)).

Regardless, as explained below, Belcher "fails to demonstrate that a

series of individual allegations of deficient performance -- although found

not to be deficient in themselves -- could nevertheless be deficient when

considered collectively." McWhorter, 142 So. 3d at 1235.

B. Brain Injuries

Belcher argues that the circuit court erroneously dismissed his

claim that trial counsel should have investigated and presented myriad

evidence to show that he suffered repeated traumatic brain injuries

("TBI") as a motorcycle racer that caused "lasting brain damage" and may

have caused him to develop chronic traumatic encephalopathy ("CTE").

(Belcher's brief, p. 32.)

In his petition, Belcher pleaded the names of multiple friends and

family members who could have testified regarding the risky nature of

motorcycle racing; "a number of specific serious wrecks" Belcher had; and

the belief that, because of those accidents, he had headaches, was

impulsive, engaged in risky behavior, and had "impaired executive

functioning," such as having trouble paying bills. (C. 136-37, 138-42.)

Belcher further pleaded that counsel should have obtained medical

64 CR-2023-0206

records showing his emergency-room treatment in Mississippi following

a motorcycle accident when he was 16 years old and treatment at Druid

City Hills Regional Medical Center, specifically after a wreck in 2000 that

dislocated his shoulder and required surgery, and as proof of his ankle

surgery that was necessitated by a motorcycle wreck in 2011. (C. 137.)

In addition, Belcher alleged that counsel should have obtained and

presented school records from Cahawba Christian Academy indicating

that "Belcher's grades began to drop in 7th grade," that he "failed and

repeated the 9th grade," and that he was "expelled" in the 10th grade.

(C. 137.) Belcher also alleged that counsel failed to collect and present

military records, which would have shown that he was "diagnosed with

generalized anxiety disorder," which, he further contends, is a common

side effect of TBI.

Finally, Belcher alleged that counsel was ineffective because they

provided "inadequate and inaccurate information" to experts and

provided an inadequate amount of time for evaluations. (C. 142.)

Specifically, although Belcher's competency to stand trial and his mental

state at the time of the offense were evaluated by psychologist Dr. Kathy

Ronan, the results of the evaluation were not complete until "two days

65 CR-2023-0206

before" trial. 11 (C. 143.) Likewise, neuropsychologist Dr. Griffith did not

provide his report until March 11, 2019, shortly after Belcher's trial had

begun. According to Belcher, with more time and accurate records

(specifically noting that Dr. Griffith incorrectly believed that Belcher's

father thought he had exaggerated his motorcycle accidents/injuries), Dr.

Griffith could have attributed Belcher's cognitive deficits to his TBI

"instead [of] simply ... [as] the result of [his] voluntary drug use." (TC.

144.) Belcher also contended that another expert, Dr. Erin Bigler, would

have testified that TBI often causes CTE, addictions, mood instability,

and aggression and that neuroimaging (MRI and PET scans) would have

documented Belcher's brain damage in "a concrete and visible way." (C.

145-48.) Belcher then contended that, but for these instances of deficient

performance, "there is a reasonable probability that [the jury] would not

have recommended a death sentence, and [the trial court] would not have

imposed it." (C. 149-50.)

The circuit court, however, did not abuse its discretion in finding

these claims to be insufficiently pleaded and without merit. Contrary to

11Notably, Belcher withdrew his plea of not guilty by reason of insanity after Dr. Ronan's evaluation. (TC. 149-50; TR. 95.) 66 CR-2023-0206

Belcher's contentions, trial counsel investigated and presented evidence

of his suffering from TBI. Dr. Griffith, an expert in neuropsychology,

testified extensively about his evaluation of Belcher, and his extensive

report was admitted into evidence. (TC. 369-87; TR. 1103-35.) Dr.

Griffith testified to conducting a "fairly long interview" with Belcher,

during which he also administered a personality and psychiatric

inventory and a "paper and pencil test," as well as "reviewed some records

that were provided to [him] from the defense." (TC. 369-87; TR. 1106-07,

1120.) Dr. Griffith, in fact, diagnosed Belcher with a "mild

neurocognitive disorder," which he opined could have been caused by TBI

from "numerous small head injuries" from repeated motorcycle accidents.

(TC. 384-86; TR. 1109, 1111.) Dr. Griffth explained that Belcher had a

"deficit" in his memory but that "the degree of his impairment in other

areas of thinking is broadly within normal limits." (TR. 1109.) Dr.

Griffith specifically testified that a person with a mild neurocognitive

disorder, like Belcher, "can have problems in executive functioning." (TR.

1111.) Although Dr. Griffith also noted Belcher's substance-abuse

disorder, he specifically explained that a person with TBI was more prone

to impulsive behavior and substance abuse because substance abuse is a

67 CR-2023-0206

method to "cope" with the "cognitive change" associated with TBI. (TR.

1112.) Dr. Griffith also noted that, at the time of the offense, Belcher was

under "considerable stress." (TR. 1113.) Consistent with trial strategy,

Dr. Griffith further testified that "recovery from methamphetamine is

not as protracted in terms of brain disorders and brain disfunction" and

that Belcher could recover and function normally and even live a

"productive life in prison." (TR. 1115, 1117.) Refuting Belcher's

postconviction claims that brain scans were needed at trial to "show" the

jury his TBI, Dr. Griffith testified that, "[a]ctually, CT scans and MRI

scans do not diagnose traumatic brain injury." (TR. 1122.) Dr. Griffith

acknowledged on cross-examination that Belcher's TBI could have also

been caused by drug use, which Belcher said began when he was 20 years

old. Dr. Griffith was clear that, regardless of the cause, Belcher had a

"mild neurocognitive disorder." (TR. 1134.) And, although Dr. Griffith

apparently had inaccurate information that Belcher's father believed

Belcher had "exaggerated the number and extent of his motorsport

injuries," Dr. Griffith admitted at trial that he had not spoken to

Belcher's father or seen hospital records. (TR. 1124-25.) Moreover,

Belcher's father testified that the report was incorrect and that he was,

68 CR-2023-0206

in fact, aware that his son had "been knocked out several times" in

motorcycle crashes and, more specifically, that he had purchased his son

four $700 helmets because of "concussions" and "severe crashes." (TR.

1147.) In addition, as the circuit court noted in its order dismissing this

claim, there was considerable testimony about motorcycle racing, the

intensity of the sport, as well as Belcher's crashes, concussions, and his

being "knocked unconscious." (C. 792 (citing TR. 111, 1138, 1142, 1147,

1150, 1167)). Yet, "Belcher's overall neurocognitive abilities fell within

the average range for a person of his age and education." (C. 792 (quoting

TC. 384).) As the circuit court properly found, "[t]he testimony that

Belcher pleads … family members would have given is largely cumulative

to the testimony other family members did in fact give." (C. 793.)

As for the timing of Dr. Griffith's report and whether something

more could have been done, Dr. Griffith indicated that he had all the

necessary information to provide a complete and accurate assessment of

Belcher and, specifically, that brain scans were not necessary. (TR. 1122,

1135). Moreover, the record indicates that counsel was working with

experts well before the "eve of trial." (TC. 149 (Trial counsel's motion for

funds to hire expert assistance was granted in November 2018).); (TC. 48

69 CR-2023-0206

(Belcher sought a continuance in January 2019 because "the experts

required to assist the defendant ha[d] not completed their work").); (TC.

379 (Dr. Griffith spent three hours with Belcher on February 21, 2019).);

and (TR. 1094 (the penalty phase began on March 18, 2019).)

Clearly, the trial court and the jury heard ample evidence regarding

Belcher's neurocognitive deficits and that they were likely caused by

traumatic brain injuries he incurred while racing motorcycles. Counsel's

performance is not constitutionally deficient simply because they could

have presented additional, cumulative evidence that Belcher had "mild

neurocognitive impairment," that it was caused by TBI, specifically, by

numerous head injuries from motorsports, or that, even if caused by his

drug use, his drug use itself could be caused by the numerous head

injuries. 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"). Moreover, Belcher never

"sufficiently pleaded how the absence of [additional] information made a

meaningful difference in his trial." (C. 795.)

70 CR-2023-0206

In addition to being cumulative, many of Belcher's contentions,

though specific, are also, as the circuit court found, speculative. "For

example, Belcher pleads that [witnesses] would have testified that he

was a good, talented racer, and ... that Belcher showed good

sportsmanship. But Belcher does not explain how such testimony ...

relate[s] to head injuries." (C. 796.) Being a good racer is not mitigation

evidence, was cumulative to what his family testified to, and speculative.

"Speculation is not sufficient to satisfy a [postconviction] petitioner's

burden of pleading." (C. 794-96 (quoting Mashburn, 148 So. 3d at 1125).)

Belcher also failed to sufficiently plead how the medical records he

cited are relevant to his "brain damage." Although Belcher pleaded two

specific hospital records that should have been obtained and presented,

he pleaded that they would have only confirmed motorcycle accidents and

surgeries to repair his shoulder and ankle, not that those records would

have shown head injuries.

Likewise, Belcher did not plead how school records allegedly

showing his poor grades beginning in the 7th grade and his expulsion in

the 10th grade were caused by head injuries or how this information

would have resulted in a different sentence. Some of the information is

71 CR-2023-0206

also cumulative in that "[t]he jury was informed that Belcher dropped out

of school in the 10th grade and obtained his GED." (C. 798 (citing TC.

381).) In addition, the contentions regarding poor grades and bad

behavior directly contradict that Belcher "denied having any difficulties

in his academic pursuits and denied ever being held back," as well as

denied "behavior problems while in school." (C. 798 (citing TC. 381).)

Counsel had no grounds to seek school records based on Belcher's own

statements. See, e.g., Walker v. State, 194 So. 3d 253, 282 (Ala. Crim.

App. 2015) (" 'The reasonableness of counsel's actions may be determined

or substantially influenced by the defendant's own statements or

actions.' " (quoting Strickland, 466 U.S. at 691).) Moreover, Belcher's

expulsion would have been a double-edged sword. " 'An ineffective-

assistance claim does not arise from the failure to present mitigation

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)).

Belcher's contentions that military records should have been

obtained and presented to show his anxiety was also insufficiently

pleaded and cumulative. As the circuit court noted, Belcher did not

72 CR-2023-0206

sufficiently plead how the records would have made a difference when

"[trial] counsel did present unchallenged evidence of Belcher's

generalized anxiety disorder [that was diagnosed in the military] to the

jury via Dr. Griffith's report." (C. 799). 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").

Counsel is also not ineffective for failing to retain a different expert.

Belcher contends, as he did in his petition, that Dr. Erin Bigler could

have confirmed that Belcher suffered from TBI and better explained his

TBI symptoms. However, Belcher was evaluated by two independent

experts, Dr. Ronan and Dr. Griffith, before trial. Thus, this is not a

situation where counsel failed to employ any experts. Moreover,

" ' "[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)). In addition, as already stated,

although Belcher contends that Dr. Bigler could have provided more

73 CR-2023-0206

detailed or more conclusive testimony, the testimony would nonetheless

be largely cumulative of Dr. Griffith's testimony at trial -- that Belcher

suffered from a mild neurocognitive disorder caused by motorcycle

accidents and drug use, which are the same two causes Belcher contends

in his petition, albeit in more detail. Moreover, some of these details,

such as that "a subset of people with TBI experience issues with

aggression" and that "[r]epeated TBI would make this more likely and

aggression is frequently seen in cases of CTE," would have been a

"double-edged sword" and inconsistent with trial strategy, which was

clearly to show that Belcher was a different person now and able to help

others, not that he was predisposed to "aggression" because of TBI and

CTE. Evidence that is cumulative, inconsistent with trial strategy, or

potentially as harmful as helpful in mitigation does not establish

deficient performance. See, e.g., McWhorter, 142 So. 3d at 1237, 1249.

Moreover, some of the facts pleaded in the postconviction petition

directly contradict what Belcher told Dr. Griffith, and Belcher has

pleaded no facts to show why counsel should not have relied on Belcher's

statements. For example, Belcher denied having problems with

concentration and focus, and, although he said he had occasional

74 CR-2023-0206

migraine headaches, he denied having frequent, severe headaches,

balance problems, vision issues, noise sensitivity, or light sensitivity.

(TC. 380; C. 800.) 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)).

Belcher also contends that counsel should have shown that he had

poor adaptive functioning; however, Belcher's working memory was in

the average range, his "overall executive functioning was average," and

he told Dr. Griffith that he was paying for his daughter to attend private

school. (TC. 379, 384; C. 800-01.) As the circuit court recognized,

"confirmation of a traumatic brain injury would not have changed the

overall finding that Belcher's neurocognitive abilities fell within an

average range." (C. 805 (citing TR. 1125-26).) Thus, the contentions that

Belcher suffered from poor adaptive functioning were refuted by the

record on direct appeal, and such claims are properly summarily

dismissed. See, e.g., Brooks v. State, 340 So. 3d 410, 454 (Ala. Crim. App.

2020 ("The circuit court properly summarily dismissed this claim because

it was insufficiently pleaded and was clearly refuted by the record on

75 CR-2023-0206

direct appeal."). In addition, " 'what investigation decisions are

reasonable depends critically on' " the " '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). And, Belcher has pleaded no

facts to even suggest that no reasonable lawyer would have been satisfied

with the evaluation and testimony of the expert counsel retained,

particularly in light of the information that Belcher provided Dr. Griffith.

Furthermore, according to Dr. Griffith, "the neurological imaging Belcher

claims counsel should have sought to confirm a TBI 'do[es] not diagnose

traumatic brain injury.' " ( C . 807 (citing TR. 1122).) Moreover, the circuit

court expressly considered Belcher's neurological disorder to be

nonstatutory mitigating evidence. (TC. 168.)

Finally, the circuit-court judge (who also presided over Belcher's

trial) was in the best position to determine the value of the additional

factual allegations regarding cognitive defects and their cause.

Considering the evidence presented during the penalty phase of Belcher's

capital-murder trial, we cannot say that the circuit court abused its

discretion in rejecting this claim. There is nothing in Belcher's petition,

particularly in light of the record, to suggest that, if this additional

76 CR-2023-0206

information had been presented, Belcher would not have been sentenced

to death. Accordingly, the circuit court properly dismissed this claim

because it was both insufficiently pleaded and without merit.

C. Military Service

Belcher contends, as he did in his petition, that trial counsel failed

to adequately investigate and present evidence regarding his military

service, specifically that it would have been mitigating that he enlisted

during a time when the United States was at war in Iraq and

Afghanistan, that he had positive changes during that time, and that he

suffered a "significant mental health crisis" during that time. (C. 150-

51.) Belcher enlisted on September 29, 2005, and from "December 15,

2005, to February 1, 2006, Mr. Belcher's mental health was evaluated at

least six times, and he was diagnosed with depression, anxiety, and

adjustment disorders." (C. 151, 153.) Belcher was discharged from the

military on March 10, 2006, nearly a decade before Samantha's murder.

As with other evidence that Belcher contends is mitigating, this

evidence is cumulative, irrelevant, and presents a "double-edged sword."

Belcher's father testified that the army was the "[b]est thing ever to

happen to him" and that Belcher grew up "a whole lot" during that time.

77 CR-2023-0206

(TR. 1142.) Belcher's mother showed the jury pictures from Belcher's

time in the military. And, Dr. Griffith noted in his report, which was

submitted as evidence at trial, that "Belcher underwent psychiatric

evaluation while in the U.S. Army and was treated for generalized

anxiety disorder prior to his medical discharge" on this ground. (TC. 380-

81.) See, e.g., Peraita, 386 So. 3d at 835 (noting that "counsel is not

ineffective for failing to present cumulative evidence"). In addition, his

mental-health problems in the army were far removed from the time of

this crime, and any ongoing mental-health issue was refuted by Belcher,

who "denied having any significant depression … panic disorder …

frequent worry or nervousness, obsessions and/or compulsions, and social

anxiety." (C. 380.) Even Belcher's petition notes that he "received an

entry-level separation, which is a discharge given within the first 180

days for someone not adjusting well to military life," which does not

indicate a mental-health issue in civilian life. (C. 151.) Moreover, rather

than reporting ongoing mental-health issues, Belcher told Dr. Griffith

that he was "under considerable stress" around the time of the offense

over work and breaking up with his girlfriend and that he had resumed

using methamphetamine "3-4 weeks prior to his arrest" for the offense in

78 CR-2023-0206

question. (TC. 386.) " 'The reasonableness of counsel's actions may be

determined or substantially influenced by the defendant's own

statements or actions.' " Washington, 95 So. 3d at 52 (quoting Jones v.

State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999)). In addition,

testimony about his mental-health issues and resulting discharge from

the army may have been a double-edged sword, and counsel is not

ineffective for failing to present such evidence. McWhorter, 142 So. 3d at

1249 (recognizing that counsel is not ineffective for failing to present

evidence that could be both helpful and harmful to the defense).

In sum, the circuit court properly summarily dismissed this claim

because Belcher did not plead how this additional information from his

time in the military would have made a "meaningful difference," and,

moreover, it is meritless. (C. 799.)

D. Divorce and Custody Battle

Belcher contends that trial counsel failed to adequately investigate

and present evidence regarding the divorce and custody battle he had

with his ex-wife, specifically, that he was "an extremely devoted father"

and that losing custody of his daughter and her suddenly moving caused

79 CR-2023-0206

him to "relapse into drug" use in the weeks before the offense.12

(Belcher's brief, pp. 46-47.) This claim was also properly summarily

dismissed because it was also insufficiently pleaded and meritless.

Again, the information Belcher contends should have been

presented, although more detailed, is merely cumulative to the testimony

presented, and "counsel cannot be ineffective for failing to present

cumulative evidence." (C. 815.) See, e.g., Peraita, supra. As the circuit

court noted, there was testimony about Belcher's marriage, about the

birth of his daughter, that he was a protective and doting father who

changed diapers and later sent his daughter to private school, that he

had a lot of problems with custody after the divorce and "lost everything

… trying to get to see his daughter," that "this is what started [his] dark

time," and that he continued to be an attentive, good father from prison.

(TR. 1143-45, 1151-52, 1155, 1167.) As the circuit court also found, some

of the facts that Belcher alleged should have come out, including that he

was suspected of using drugs and cheating on his wife, would have been

12Notably, Belcher told Dr. Griffith that he had been under "considerable stress" at the time of the crime because of long work hours and because he "had broken up with his girlfriend, Britney Coley, about two months prior to the offense," not because of his ex-wife and custody problems. (TC. 386.) 80 CR-2023-0206

"contradictory to trial counsel's chosen penalty-phase strategy of trying

to paint Belcher in a good light." (C. 816.) See, e.g., McWhorter, supra

(counsel is not ineffective for failing to present evidence that could also

be harmful). Likewise, divorce records that indicated that Belcher was

unable to obtain custody because of his drug addiction, which worsened

during the time of the offense, and that he was required to have

supervised visits following an arrest on drug charges were both

cumulative and potentially damaging.

As for the criminal records of his ex-wife's girlfriend, allegedly

showing that she was violent toward him, Belcher fails to plead any facts

to show that this would have been relevant, much less "mitigating."

Belcher also never pleaded what specific Department of Human

Resources ("DHR") records were relevant or what they would have shown

other than his "stress" over custody disputes. Nor did Belcher plead how

phone records showing his distress over his daughter's move to another

state, which was cumulative, would have made any difference in his

sentence. In sum, Belcher did not plead how counsel's performance was

deficient based upon counsel's failure to present this cumulative

information.

81 CR-2023-0206

For all these reasons, this claim was properly summarily dismissed

for being insufficiently pleaded, and, in light of the evidence presented,

it was without merit. Belcher pleaded no facts that would have made any

difference in his sentencing outcome.

E. Counsel's Investigation and Presentation of Addiction

Belcher contends that trial counsel failed to adequately investigate

and present evidence regarding his addiction to methamphetamine.

This claim was insufficiently pleaded. Furthermore, the facts that

Belcher pleads should have been presented in mitigation are both

cumulative and a double-edged sword and, thus, if true, do not entitle

him to relief. See, e.g., McWhorter, supra.

Counsel's penalty-phase opening statement painted a picture of

Belcher "before he was on drugs," "who he was when he was on drugs,"

and "who he's become now that he's been in jail and he's sober" in a clear

effort to show that his actions on drugs were an anomaly and that he

was now back to a "person whose life is worth saving." (TR. 1099.) Dr.

Griffith testified that those with TBI often use drugs to cope. Dr. Griffith

further testified that drug use could amplify TBI symptoms, making a

person "more impulsive" and "more aggressive." (TR. 1114.) Consistent

82 CR-2023-0206

with the trial strategy, Dr. Griffith further testified that "recovery from

methamphetamine is not as protracted in terms of brain disorders and

brain dysfunction" and that one could recover and function normally.

(TR. 1115.) Dr. Griffith's report, which was admitted into evidence,

noted Belcher's drug use. Belcher reported "recreational" use of

methamphetamine starting at age 26 and use of "cannabis and cocaine

… in his 20's." (TC. 380.) Belcher, however, "admitted that his drug use

had been a factor in his divorce." (TC. 381.) Belcher also admitted that

he was "arrested for possession of a controlled substance" in 2013 and

that he was "sentenced to complete a year-long program at Indian Rivers

Mental Health Center," and, he said, he completed the program and the

charges were dropped. (TC. 381.) Belcher "denied having been involved

in any other substance use treatment programs." (TC. 381.) Belcher's

father testified that he "did not realize the extent" of Belcher's drug use,

but that "his conversations got back to normal" after a few months in

jail. (TR. 1145.) Belcher's father also wrote a letter that was admitted

into evidence, explaining that Belcher became a methamphetamine

"addict" after he lost custody of his daughter. Belcher's sister's letter

was admitted, and, consistent with counsel's strategy, addressed what a

83 CR-2023-0206

great brother and father Belcher was before drugs destroyed his life and

addressed their relationship, as well as stated that Belcher was being a

great father and brother again since going to jail and ceasing his drug

use. (TC. 399.) A letter from Belcher's aunt addressing similar topics

was admitted, and she asked for prayers as they "try to heal the wounds

that drug addiction has inflicted." (TC. 400.)

Clearly, additional evidence of Belcher's drug use would have been

inconsistent with defense strategy. Counsel's penalty-phase strategy

was to acknowledge his drug use but to emphasize the "good Belcher"

before and after the drug addiction, which was clearly a strategic

decision. It would have been inconsistent with the defense strategy to

emphasize Belcher's voluntary drug use when it was just as likely to be

considered an aggravating circumstance as a mitigating circumstance.

As the circuit court found, "[e]vidence that Belcher was addicted to meth

and had criminal records relating to that addiction flies in the face of the

defense's theory of mitigation." (TC. 827.) The circuit court recognized

that trial counsel's mitigation strategy to not emphasize Belcher's

methamphetamine addiction was reasonable and stated that "Belcher

does not and cannot claim that no reasonable attorney in trial counsel's

84 CR-2023-0206

petition would have done the same." (TC. 827.) Moreover, "the same

judge who presided over [Belcher's capital-murder trial also considered

his postconviction petition," and "[w]e afford the experienced judge's

ruling 'considerable weight.' " Washington, 95 So. 3d at 53.

Furthermore, the additional evidence emphasizing Belcher's drug

problem would have been a double-edged sword. See, e.g., Davis v. State,

9 So. 3d 539, 566 (Ala. Crim. App. 2008). This is particularly true where,

as here, there was little benefit to emphasizing his drug problem because

Belcher pleaded no facts indicating that he was "substantially impaired"

at the time of the offense so as to support the finding of a statutory

mitigating circumstance under § 13A-5-51(6), Ala. Code 1975 ("[t]he

capacity of the defendant to appreciate the criminality of his conduct or

to conform his conduct to the requirements of law was substantially

impaired"), or § 13A-5-51(2), Ala. Code 1975 ("[t]he capital offense was

committed while the defendant was under the influence of extreme

mental or emotional disturbance"). 13 His mere conclusion, unsupported

13The trial court, in its sentencing order, noted Belcher's "drug usage on and during November 1 and 2, 2015, as well as drug usage and habits prior to those dates," but was not "convinced from the evidence that any such drug usage rises to the level of substantially diminishing the defendant's capacity to appreciate the criminality of his conduct or to 85 CR-2023-0206

by facts, that "[j]urors and [the trial] Court may well have concluded that

this additional evidence of Mr. Belcher's intoxication, along with the

evidence of his brain damage, supported the statutory mitigating

circumstances" that he was "substantially impaired" and "under the

influence of extreme mental or emotional disturbance" (C. 205) was

insufficient. Belcher never alleged that he was substantially impaired

or under a "mental or emotional disturbance" at the time of the offense

such that the additional facts he pleads would have elevated the

consideration of his drug use from a nonstatutory mitigating

circumstance to a statutory mitigating circumstance. And, emphasizing

Belcher's drug use would have "painted Belcher as untruthful" based on

his self-reporting of drug use to Dr. Griffith. (TC. 827.) See, e.g.,

Washington, 95 So. 3d at 53 (" 'An ineffective assistance claim does not

arise from the failure to present mitigation evidence where that evidence

presents a double-edged sword' " (quoting Reed v. State, 875 So. 2d 415,

conform his conduct to the requirements of the law, such that it is a statutory mitigating circumstance." (C. 49.) Instead, the court found his drug usage to be "a nonstatutory mitigating circumstance." (C. 49.) In his petition, Belcher pleaded no facts to show that his drug use substantially impaired him enough to qualify as a statutory mitigating circumstance. Rather, he pleaded more evidence of drug use as a nonstatutory mitigating circumstance. 86 CR-2023-0206

437 (Fla. 2004))), and Boyd v. State, 306 So. 3d 907, 926 (Ala. Crim. App.

2019) (holding that the circuit court did not abuse its discretion by failing

to consider Boyd's substance abuse as a mitigating factor in the murder

because it found that Boyd was not impaired at the time).

In addition, evidence of Belcher's drug use was admitted and

additional evidence would have been cumulative. Indeed, the trial court

expressly considered Belcher's drug usage as a nonstatutory mitigating

circumstance, showing that the information pleaded was largely

cumulative. As previously noted, counsel does not render ineffective

assistance by not presenting cumulative evidence. See, e.g., McWhorter,

supra.

Moreover, we note that some of Belcher's contentions, on one hand,

amount to his faulting counsel for not retaining an expert to confirm that

his deficits were based on TBI, but, on the other hand, are faulting

counsel for not retaining an expert to confirm that his deficits may have

been caused by his drug use. For example, Belcher contends that counsel

should have retained a psychopharmacologist to educate the jury about

the effects of methamphetamine addiction, including brain damage, and,

specifically, that Dr. Skolly Danziger would have testified that "brain

87 CR-2023-0206

damage from methamphetamine may also overlap with damage often

seen from TBI." (Belcher's brief, p. 52.) However, this contention is

directly at odds with Belcher's simultaneously held position that he was

prejudiced because Dr. Griffith testified that Belcher's drug use could

have contributed to his mild neurocognitive deficits, instead of limiting

the cause of his deficits to TBI from head injuries caused by motorcycle

accidents.

The circuit court properly summarily dismissed this claim because

Belcher's argument is "inconsistent with the defense theory of the case

or would have been otherwise cumulative." McWhorter, 142 So. 3d at

1237 (affirming the denial of postconviction relief because "[t]he circuit

court found that defense counsel's strategy in mitigation was reasonable

and that additional evidence presented at the postconviction hearing

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"). Belcher pleaded no facts, particularly

considering the record, that suggested either deficient performance or

that his sentencing outcome would have been different based on the

presentation of the additional evidence.

88 CR-2023-0206

F. Counsel's Investigation and Presentation of Jail Behavior

Belcher also contends that his trial counsel failed to adequately

investigate and present evidence of his good behavior since he had been

in jail.

In Skipper v. South Carolina, 476 U.S. 1, 7 n. 2 (1986), the United

States Supreme Court recognized that "evidence of adjustability to life

in prison," specifically, evidence that a defendant is "a well-behaved and

disciplined prisoner," "unquestionably goes to a feature of the

defendant's character that is highly relevant to a jury's sentencing

determination." Belcher's trial counsel, in fact, presented this type of

mitigating evidence at Belcher's trial. However, as with his other

failure-to-investigate-and-present-mitigation-evidence claims, Belcher

asserts additional, cumulative evidence of his good behavior and positive

improvements in jail that, in hindsight, should have been presented. As

with all claims that more evidence should have been presented, we first

consider what actually was presented.

Belcher's first penalty-phase witness was a guard from the

Tuscaloosa Jail who was well acquainted with Belcher and testified that

he was a "good" inmate who apologized the one time he broke the rules.

89 CR-2023-0206

Dr. Griffith also testified that Belcher could recover from his addiction

to methamphetamine more quickly than one could recover from other

brain injuries and that he could function normally. In fact, Dr. Griffith

testified that there was nothing that would prevent Belcher from being

able to live a "productive life in prison." (TR. 1117.) Belcher's father

also testified that Belcher had made positive changes while in jail

awaiting trial and that he was a good mechanic who could teach others.

He further testified that Belcher had a good relationship with his

daughter and tries to be a good father from jail. A family friend wrote,

for the jury's consideration, that Belcher had "set up a Bible study in the

jail" and was "attending the church services available and [wa]s making

the most of his situation," "reading the Bible, studying, and reflecting,"

and had made her a cross bookmark. (TR. 1138.) Belcher's sister also

testified that Belcher made "crosses" in jail. Belcher's mother testified

that Belcher had changed "greatly" in jail and was always praying and

wanted her to take his daughter to church, that Belcher could lead Bible

studies in prison, and that Belcher could teach mechanics to other people

in prison. (See also TC. 411 (sentencing memo noted he was a "model

prisoner" and "can contribute to the education of other inmates in prison

90 CR-2023-0206

in both Bible study and small machine repair"); TR. 1099 (penalty-phase

opening noting Belcher's ability to teach and help other inmates).)

Belcher also requested that the trial court instruct the jurors on the

mitigating factors that Belcher was a "productive prisoner" and could

"teach other prisoners mechanics and Bible Study." (TC. 405.)

Moreover, as the circuit court found, "every family member that testified

on Belcher's behalf testified that they have remained in contact with

Belcher and support him" and that "[t]his evidence painted a positive

adjustment picture for the jury" and "showed the jury that Belcher was

making positive changes … and could take responsibility for his

wrongful actions." (C. 831.)

Belcher now contends on appeal, as he did in his petition, that trial

counsel should have called additional witnesses to testify about

Belcher's exceptional behavior and positive changes in prison --

specifically, an addiction-recovery-class teacher, two Bible-study

teachers, and an addiction counselor, all of whom worked with Belcher

in jail. Belcher also asserts that Frankie Mann and Robert Henderson

would have testified about Belcher's remorse.

91 CR-2023-0206

Neither Belcher's petition nor his brief to this Court explains how

reasonably competent counsel would have known about these additional

witnesses, and, notably, Belcher did not plead that he had informed his

counsel about these witnesses but that counsel had failed to follow up.

"An attorney's decision regarding investigation depends 'critically' on

information received from his or her client." Broadnax v. State, 130 So.

3d 1232, 1258 (Ala. Crim. App. 2013) (citing Strickland, 466 U.S. at 691).

Moreover, the pleaded facts were largely cumulative. See, e.g.,

Marshall, 182 So. 3d at 596 (" ' " 'A lawyer can almost always do

something more in every case. But the Constitution requires a good deal

less than maximum performance.' " ' ") (citations omitted))). In addition,

Belcher did not plead how the additional evidence would have changed

his sentence. Belcher merely made the conclusory allegation that, had

this additional evidence of positive changes been presented, "there is a

reasonable probability that the jury would not have recommended …

death and that this Court would not have imposed that sentence." (TC.

200.) Finally, it is clear from the record that this largely cumulative

evidence would not have changed the result. "Cumulative witnesses and

evidence, even if true, would not have altered the trial court's opinion

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that death was the appropriate sentence in this case." Ferguson v. State,

13 So. 3d 418, 441 (Ala. Crim. App. 2008). Finally, Mann's and

Henderson's proposed testimony that Belcher expressed "sincere

remorse" while awaiting trial was significantly undermined, if not

refuted, by Belcher's own testimony and demeanor at trial, which the

postconviction judge, who was also the trial judge, observed firsthand;

and the trial court expressly found that the nonstatutory mitigating

circumstance of remorse did not exist.

We thus agree that this claim was properly summarily dismissed

as being both insufficiently pleaded and without merit, particularly

considering that the circuit-court judge also presided over Belcher's trial

and sentenced him and was in the best position to consider any effect

these allegations could have had on the jury's recommendation and his

own sentencing determination.

G. Counsel's Penalty-Phase Closing Argument

Belcher further contends that trial counsel's penalty-phase closing

argument was deficient, pointing out that "more" could have been said

regarding the various mitigating circumstances that had been presented

93 CR-2023-0206

at trial. The circuit court also properly summarily dismissed this claim

as insufficiently pleaded and meritless. (C. 834.)

"It is well settled that closing argument is generally a matter of

trial strategy." Clark v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015).

As the circuit court found, "[c]ounsel made a reasonable, strategic

decision to focus on Belcher's potential, and he fails to plead that no other

reasonable counsel would have made the same decision." (C. 834.)

"Moreover, Belcher's claim that counsel's failure to highlight his lack of

significant criminal history during closing argument robbed the jury of

the opportunity to consider such evidence in mitigation is simply without

merit." (C. 835.) "[W]hile counsel may not have mentioned such evidence

in closing, the evidence was presented to the jury during instructions,

and this Court weighed it at sentencing." (C. 835.) "Additionally,

nowhere in his petition does Belcher plead what closing statement trial

counsel should have given" instead. (C. 835.) Rather, Belcher merely

believed that all the mitigating evidence that had been presented during

trial should have been highlighted during closing instead of counsel's

focusing in closing on Belcher's positive present and future, in accordance

with his theme, which was that Belcher's life was worth saving. See, e.g.,

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Daniel v. State, 86 So. 3d 405, 440 (Ala. Crim. App. 2011) ("Daniel failed

to plead what argument counsel could have made that would have

resulted in a different sentencing recommendation in this case or how he

was prejudiced; thus he failed to comply with Rule 32.6, Ala. R. Crim.

P."). However, " '[t]he fact that this defense strategy was ultimately

unsuccessful with the jury does not render counsel's performance

deficient.' " Bush v. State, 92 So. 3d 121, 160 (Ala. Crim. App. 2009)

(quoting Johnson v. State, 769 So. 2d 990, 1001 (Fla. 2000)).

H. Prejudicial Effect of Counsel's Performance

Belcher's final penalty-phase ineffective-assistance-of-counsel

argument is that, but for counsel's deficient performance, "individually

and collectively," in the penalty phase, "there is a reasonable probability

that jurors would not have sentenced [him] to death." (Belcher's brief,

pp. 63-64.)

The circuit court properly summarily dismissed this claim "because

no ineffective assistance of counsel has been shown." (C. 836.) The

omission of the mitigation evidence that Belcher contends should have

been presented does not indicate constitutionally ineffective assistance.

Thus, "there is no individual or cumulative effect." (C. 836 (citing Taylor

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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")).)

Second, the circuit-court judge, who also presided over Belcher's

capital-murder trial, found that, considering the evidence presented at

trial, Belcher had pleaded no facts that, if true, would have resulted in a

different verdict or sentence. In short, "the allegedly omitted mitigation

evidence would not have affected his decision that the aggravating

circumstances outweighed the mitigating circumstances and mandated a

death sentence." Washington, 95 So. 3d at 53. "We agree with the circuit

court that the admission of this evidence [which was mostly cumulative,

negative, and inconsistent with the mitigation strategy employed by trial

counsel] would not have changed the verdict in the penalty phase." Id.

" ' " 'When 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 independently

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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

Here, upon considering the evidence Belcher contends counsel

should have presented in mitigation, considering what trial counsel, in

fact, presented at his trial, the strength of the evidence (which included

Belcher's own testimony and overwhelmingly indicated his guilt), and

reweighing the evidence in mitigation against the evidence in

aggravation, we agree that there is no reasonable probability that the

additional mitigation evidence proffered by Belcher in his petition would

have resulted in Belcher's receiving a different sentence.

97 CR-2023-0206

IV. Guilt-Phase Ineffective-Assistance Claims 14

Belcher's fourth argument challenges the dismissal of his various

claims that his counsel rendered ineffective assistance during the guilt

phase of his capital-murder trial. We review these claims in accordance

with the same legal principles that governed our review of Belcher's

penalty-phase ineffective-assistance claims and hold that the circuit

court properly summarily dismissed these claims, which were either

insufficiently pleaded, meritless, or both.

A. Defense Theory

Belcher contends, as he did in his petition, that trial counsel were

ineffective because they did not present evidence to show that his

"codefendants were the ones who had beaten and killed [Samantha],

challenge the State's evidence suggesting Mr. Belcher was the ringleader,

14We also note that, in his petition, Belcher asserted an additional

guilt-phase claim -- that the State improperly withheld exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) -- which was also summarily dismissed by the circuit court. (C. 206-07, 837.) However, this claim was not reasserted in Belcher's brief on appeal and, thus, has been abandoned. See, e.g., Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995) ("We will not review issues not listed and argued in brief.").

98 CR-2023-0206

and undermine the credibility of Steven George and Chylli Bruce."

(Belcher's brief, p. 67; C. 67.)

In considering Belcher's guilt-phase claims of ineffective assistance

of counsel, we first consider what guilt-phase theory and strategies were

employed. In addition, as this Court recognized in Clark v. State, " '[t]rial

counsel's decisions regarding what theory of the case to pursue represent

the epitome of trial strategy.' " 196 So. 3d 285, 306 (Ala. Crim. App. 2015)

(quoting Flowers v. State, 2010 Ark. 364, 370 S.W.3d 228, 232 (2010).)

" 'What defense to carry to the jury, what witnesses to call, and what

method of presentation to use is the epitome of a strategic decision, and

it is one that we will seldom, if ever, second guess.' " Id. (quoting State v.

Miller, 194 W.Va. 3, 16, 459 S.E.2d 114, 127 (1995)). Moreover, that a

defense strategy was ultimately unsuccessful or that another alternative

theory existed does not establish deficient performance, much less that

counsel's choices prejudiced the defendant. Indeed, "with the luxury of

time and the opportunity to focus resources on specific facts of an already

made record, postconviction counsel will inevitably be able to identify

alternative defense theories that could have been pursued." Id.

"However, we cannot view counsel's performance in hindsight. Rather,

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we must view counsel's decisions at the time they were made." Id. In

this case, it is clear from the record that trial counsel's defense theory

was reasonable and that it was reasonably presented to the jury.

During the guilt phase of his trial, "Belcher's defense was that,

although he participated in the events that ultimately led to Samantha's

murder, Steven was the person who actually killed her. Belcher testified

on his own behalf" to this effect. Belcher, 341 So. 3d at 253. In addition,

Belcher's counsel argued that Belcher did not have the requisite intent

to kill Samantha and that, if Steven George had not stolen Samantha's

car and set it on fire, "all of these events wouldn't have taken place." (TR.

1027.) Defense counsel's closing argument to the jury emphasized that

five people were responsible for beating, binding, and placing Samantha

in a trunk; that the State had not shown that Belcher intended Samantha

to die because the knife, although it contained Belcher's DNA, belonged

to Steven George and did not have Samantha's DNA on it; that Steven

George's clothes had Samantha's DNA on them; that there was no

determination about how Samantha died; that only one witness noticed

that Belcher's hands were tinted with blood but did not remember that

until more than three years later when he testified at trial; that Chylli

100 CR-2023-0206

Bruce said that she did not know what had happened to Samantha until

the State offered her probation to testify against Belcher; that Steven

George also bargained for less time by blaming Belcher and his testimony

"ain't worth much"; and that Steven George was the only person who

benefited from Samantha's death. (TR. 1027-33.) See, e.g., Clark v.

State, 196 So. 3d 285, 316 (Ala. Crim. App. 2015) (" '[C]losing argument

is an area where trial strategy is most evident.' " (quoting Flemming v.

State, 949 S.W.2d 876, 881 (Tex. Ct. App. 1997))). Belcher's counsel

further argued that Belcher could not be guilty of anything more than

"felony murder." (TR. 1034.)

In sum, Belcher's postconviction contentions regarding alleged

ineffective assistance during the guilt phase of his trial amount to

nothing more than his belief that the same theory could have been

presented more effectively, which will rarely establish either deficient

performance or prejudice. Given the additional facts alleged here in light

of the trial record, Belcher's contentions fail, even if true, to satisfy either

prong of Strickland.

101 CR-2023-0206

1. Failure to Implicate Belcher's Codefendants

Belcher asserted in his petition that Steven George had a motive to

harm Samantha because she had rejected a previous sexual proposition,

which he says could have been established from a cellular-telephone

extraction and social-media interactions; that Steven George had

previously slit a friend's throat and been "convicted of assault [2008],

menacing [2012], trespass, and disorderly conduct [2014]" (C. 64-65); that

Steven George stole four-wheeler parts from customers when he worked

for Belcher; that Bruce was romantically interested in Belcher and "may

have been motivated" to murder Samantha because of "jealousy"; that

Bruce journaled that she prostituted and choked other women; that

Bruce had been suspended from school "five times before she was

expelled in 2015 for assaulting … a school employee (C. 69); that Bruce

had been arrested for various thefts and had a juvenile record; and that

Marcus George,15 who played a "substantial role" in the murder, had

prior convictions and confrontations with the police. (C. 72-73.) Belcher

then concludes that "[i]f counsel had investigated and presented evidence

15"Steven George and Marcus George, both co-defendants in this

case, are unrelated but share the same last name." (C. 708.) 102 CR-2023-0206

that [his] co-defendants were the ones responsible for [Samantha's]

death, there is a reasonable probability that he would not have been

convicted of capital murder or sentenced to death." (C. 73-74.)

The circuit court properly summarily dismissed this claim for being

both insufficiently pleaded and meritless.

As the circuit court recognized, trial counsel's primary defense

theory was that Steven George killed Samantha, and this theory was

clearly presented in opening statements. (C. 709 (citing TR. 414).)

Steven George admitted at trial that he and Marcus George stole

Samantha's car, that Steven George took the catalytic converter out of it,

that Steven George stabbed a hole in the gas tank and took Samantha's

gasoline, and that Steven George set Samantha's car on fire to destroy

the evidence. (TR. 556-58.) "[C]ounsel also elicited an admission that it

was Steven George's idea to steal Samantha's car and burn it, not

Belcher's, and that Belcher was not involved at all in that event." (C. 709

(citing TR. 594).). In addition, trial counsel "elicited an admission that

Steven George had stolen and destroyed two cars in the past for fun." (C.

709 (quoting R. 594-95).) Belcher's trial counsel then emphasized in

103 CR-2023-0206

guilt-phase closing arguments 16 that "these [Samantha's beating,

kidnapping, and murder] wouldn't have taken place" but for Steven

George's actions and that Steven George was the only person who stood

to benefit from Samantha's murder. (TR. 1026-27, 1033.)

Based on the record, "Belcher's claim that counsel did not present

a theory of motive that undercut Steven George's self-serving testimony

is meritless on its face." (C. 709.) And, his contention that Steven George

had an additional motive (other than to steal to support his drug habit

and cover up the evidence) to kill Samantha because she had previously

rejected his sexual proposition does not indicate deficient performance.

See, e.g., Hunt v. State, 940 So. 2d 1041, 1067 (Ala. Crim. App. 2005)

(" '[T]he mere existence of a potential alternative defense theory is not

enough to establish ineffective assistance based on counsel's failure to

present that theory' " (quoting Rosario-Dominguez v. United States, 353

F. Supp. 2d 500, 513 (S.D.N.Y. 2005))).

16Belcher's trial counsel also emphasized Steven George's guilt in

the penalty-phase closing arguments: "Mike's not the person who started this chain of events that ended up in Samantha's death. Steven George is." (TR. 1181.) 104 CR-2023-0206

Belcher's allegation was also insufficiently pleaded because Belcher

pleaded no facts to show how trial counsel's chosen theory -- that Steven

George had the only motive to kill Samantha based on the criminal acts

he committed on the night of the murder -- was unreasonable and how

adding the additional theory that Steven George had once been rejected

by Samantha would have led to a different verdict.

As for Belcher's arguments regarding prior bad acts committed by

the codefendants that he believes counsel should have presented at trial,

"Belcher fails to plead how evidence of such history could have … been

admitted in accordance with the rules of evidence." (C. 712.) Rule 608(b),

Ala. R. Evid., provides that "[s]pecific instances of the conduct of a

witness, for the purpose attacking or supporting the witness's character

for truthfulness, other than conviction of crime as provided in Rule 609,

may not be inquired into on cross-examination of the witness nor proved

by extrinsic evidence." (Emphasis added.) Rule 609, Ala. R. Evid.,

further provides:

"(a) General Rule. For the purpose of attacking the credibility of a witness,

"(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was

105 CR-2023-0206

punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and

"(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

"(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

"(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction … unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

In short, Belcher did not plead any facts to show how the "bad acts"

evidence would have been admissible. Only prior convictions are

admissible and only for the purpose of attacking a witness's truthfulness.

See also Rule 404, Ala. R. Evid. ("Evidence of a person's character or trait

of character is not admissible for the purpose of proving action in

conformity therewith."). Moreover, "[e]vidence of juvenile or youthful

offender adjudications is not admissible." Rule 609(d), Ala. R. Evid.

106 CR-2023-0206

Thus, the bad acts, arrests, and alleged juvenile record were inadmissible

on their face.

In addition, although three of the prior bad acts Belcher alleged in

his petition concern Steven George's alleged prior convictions, Belcher

also pleaded no facts to show that this evidence would have been

admissible. Specifically, Belcher contends that Steven George was

convicted in 2008 for "assault and trespass," but he pleaded no facts that

would show that this evidence should have been admitted as an exception

to the general prohibition of crimes that occurred more than 10 years

before Belcher's trial in 2019. See Rule 609(b), Ala. R. Evid. The other

two convictions were in 2012, for "menacing," which is a Class B

misdemeanor, see § 13A-6-23, Ala. Code 1975, and in 2014 for disorderly

conduct, which is a Class C misdemeanor, see § 13A-11-7, Ala. Code 1975,

and were, thus, inadmissible.

Belcher also pleaded that Marcus George's prior convictions should

have been presented to the jury, but he never even alleged the date of

those convictions; nor did Belcher attempt to explain "how the criminal

history of a non-testifying codefendant would have been admissible under

the rules of evidence." (C. 72-73, 719.) The circuit court thus properly

107 CR-2023-0206

summarily dismissed this claim as both insufficiently pleaded and

meritless because " '[c]ounsel is not ineffective for failing to present

evidence that is inadmissible.' " Thompson v. State, 310 So. 3d 850, 869

(Ala. Crim. App. 2018) (quoting McLaughlin v. State, 378 S.W.3d 328,

346 (Mo. 2012)).

In addition, some of the "bad acts" evidence Belcher claims counsel

did not present was cumulative to evidence that was, in fact, presented

at trial. For example, Bruce acknowledged suspensions for fighting other

girls in addition to arrests and pending charges for stealing. Steven

George acknowledged arrests for a stolen four-wheeler, DUIs, and drug

charges. (TR. 544.) Bruce also admitted at trial that she had been

involved in a sexual relationship with Belcher. (TR. 489-90, 499.) See,

e.g., Saunders v. State, 249 So. 3d 1153, 1160 (Ala. Crim. App. 2016)

(holding that counsel is not ineffective for not presenting cumulative

evidence).

Moreover, the allegation that counsel did not present all of the

codefendants' motives to testify against Belcher is insufficiently pleaded

because Belcher does not state how counsel should have known about the

other charges or why they would have made a difference. There was

108 CR-2023-0206

ample evidence and arguments presented at trial about the highly

favorable plea agreements that Chylli Bruce and Steven George made

with the State in exchange for their testimony against Belcher. (TR. 414,

464, 495-96, 499, 584-85, 587, 1030-33, 1182.) Furthermore, Belcher

pleaded no facts to show that the dismissal of additional, lesser charges

would have indicated more bias and motivation than the plea agreements

they made to receive lesser sentences for Samantha's capital murder.

Finally, Belcher pleaded no facts to explain how, if the jury had

known this additional information, there is a reasonable probability that

Belcher would not have been convicted or sentenced to death. (C. 720.)

The circuit court thus properly summarily dismissed this claim.

2. Failure to Challenge Belcher's "Ring-Leader" Characterization

Belcher also contends on appeal, as in his petition, that "trial

counsel failed to investigate and present readily available evidence to

rebut" the State's portrayal of him as the "ringleader" who provided

everyone drugs. (Belcher's brief, pp. 74-75.) Belcher contends that he

"had not manufactured methamphetamine for many months prior to this

offense" and that counsel could have elicited testimony on cross-

examination of Bruce and law-enforcement officers showing that Belcher

109 CR-2023-0206

had not been manufacturing drugs at the time and did not manufacture

the drugs used on the night of the offense. Belcher, however, did not

plead any facts to show that Belcher told counsel this or explain how,

even if true, his not manufacturing the drugs used that night would have

resulted in his not being convicted or sentenced to death for Samantha's

murder.

That Belcher did not "make" the drugs does not mean that he did

not "supply" the drugs. In addition, the only mention of Belcher's

manufacturing methamphetamine came from Belcher himself, who

testified that his father "kept accusing [him] of making drugs in the

woods," and Belcher admitted that he had made methamphetamine in

the past for himself and had shared it with friends. (TR. 978, 984.)

Bruce's testimony was simply that she and Belcher used drugs together

and that the drugs came from Belcher that night, not that he

"manufactured" them. (TR. 471.) More importantly, even if Bruce could

have been impeached with a prior statement that Steven George actually

supplied the drugs that night, Belcher pleaded no facts to show that

merely because Steven George and Marcus George manufactured

methamphetamine or because Steven George supplied the

110 CR-2023-0206

methamphetamine to the group that night, Belcher was somehow less

culpable for his part in Samantha's murder. This evidence would have

made no difference, particularly in light of Belcher's own testimony that

the beating and kidnapping of Samantha began at his shop and continued

to Belcher's car, home, and back to his car; that Belcher actively

participated in the kidnapping, including putting Samantha back in the

car when she escaped his moving car's trunk; and that he assisted in

placing a badly beaten and "hog tied" Samantha in the woods. As the

circuit court found, "Belcher's manufacturing was immaterial to the

State's case." (C. 722.) And, as the circuit court also found, Belcher did

not explain "how the jury would have drawn any meaningful distinction"

based on when and where and how much methamphetamine Belcher had

manufactured or supplied. (C. 723.) Moreover, it was not unreasonable

for counsel to not elicit further evidence regarding Belcher's drug use and

manufacture of drugs, which, as already noted, was a double-edged

sword.

Belcher's argument that his counsel failed to refute that he was the

ringleader of this crime is also clearly without merit because it is refuted

by the record. Counsel's theory was clearly that Steven George was the

111 CR-2023-0206

ringleader, and the best evidence of that was not that Steven George

supplied the drugs, but that Steven George stole Samantha's car,

removed a part and the gasoline, and set it on fire, which precipitated

Samantha's beating, kidnapping, and murder. Trial counsel emphasized

during the guilt phase of Belcher's trial that Steven George was the only

person who stood to benefit from Samantha's murder. (TR. 1026-27,

1033.) He again emphasized Steven George's role as the "ringleader" in

the penalty-phase closing arguments, stating: "Mike's not the person who

started this chain of events that ended up in Samantha's death. Steven

George is." (TR. 1181.) Contrary to Belcher's contentions, as the circuit

court found, "that Steven George stayed at [Belcher's] home and used

[Belcher's] car and cellphone" would not have helped refute Belcher's role

as ringleader but "would have strengthened the State's theory." (C. 725.)

For all these reasons, Belcher's contentions are both insufficiently

pleaded and meritless.

3. Failure to Impeach the Credibility of Bruce and Steven George

Belcher further contends, as he did in his petition, that trial counsel

should have impeached Bruce and Steven George with prior inconsistent

statements. Belcher contends that Steven George made inconsistent

112 CR-2023-0206

statements, telling law-enforcement officers that he had no idea

Samantha's body was in the trunk until they ran out of gas, that he stole

her car on Belcher's orders, that he helped only because "Belcher

threatened to kill him," that he put Samantha's catalytic converter in

Belcher's dryer but at Belcher's trial did not state where he put it, that

he provided conflicting accounts of who did what to Samantha, and that

he did not trust Belcher and they had no relationship other than Steven

George's having bought methamphetamine from Belcher. (C. 80-85.)

Belcher then baldly pleaded that, had the jury heard "the many times

that Steven George had lied," there is a reasonable probability that the

jury would not have credited his testimony. (C. 86.) Belcher further

contended that counsel should have made the jury aware of the "full

benefit" Steven George received for his testimony, such as not being

prosecuted for the theft and destruction of Samantha's car.

As the circuit court found, Steven George's prior inconsistent

statements were not favorable to Belcher. At trial, Steven George

testified that he alone came up with the idea of stealing and burning

Samantha's car and that he and Marcus George did this with no direction

from Belcher. In an earlier statement, Steven George had said that this

113 CR-2023-0206

was all done at Belcher's direction. Likewise, Belcher complains that not

enough was done to prevent the jury from thinking that he was the

ringleader and a drug manufacturer; yet, in this claim, Belcher contends

that counsel was ineffective for failing to introduce a prior statement that

Steven George only knew Belcher because Belcher sold him

methamphetamine. Steven George testified at Belcher's trial that he

helped "hog tie" Samantha's wrists and feet and, then, behind her back,

tied her wrists and feet together17 and, further, that he then helped

Belcher put Samantha in the trunk of Belcher's car. Steven George

further testified at Belcher's trial that he also helped Belcher "get

17In his petition and brief, Belcher contends that Steven George testified at his trial that he "stood about three feet away" when Samantha was tied and bound but that he testified at Marcus George's trial that he helped "hog tie" Samantha. This contention is largely refuted. On direct examination at Belcher's trial, Steven George testified in detail about cutting the cable wire, getting the shoelaces, and assisting Belcher in tying Samantha. (TR. 564-66.). On cross-examination, however, Steven George stated that Belcher tied Samantha's hands and feet and that he was about three feet away. (TR. 598-600). Regardless, Belcher's jury heard Steven George testify about his participation in the binding of Samantha. And, to the extent that Steven George changed his story on cross-examination, this example illustrates why counsel would not have wanted to try to impeach Steven George when his direct testimony was consistent with the defense theory that he was the ringleader and cross- examination resulted, at least in this instance, in less favorable testimony. 114 CR-2023-0206

[Samantha] out of the car" and "drag her in the woods." (TR. 572; C. 736.)

Counsel cannot be ineffective for not presenting the jury with "confusing,

and possibly harmful, evidence that would have contradicted the

defense's own theory." (C. 735.) "[C]ounsel appears to have shielded

Belcher from 'double-edged' testimony." (C. 736.) In sum, "it appears that

counsel made the strategic decision to not impeach Steven George with

his prior statements, but rather, let him further implicate himself and

Belcher's codefendants." (C. 736-37.) Counsel "limit[ed] Steven George's

testimony to only that which was helpful to Belcher's defense. Belcher

fails to explain how no reasonable attorney in trial counsel's position

would have done the same." (C. 737.) Moreover, Belcher did not plead

how, if trial counsel had highlighted these largely unfavorable

inconsistences, the outcome of his trial would have been different. Nor

would these facts, if true, have likely changed the outcome of Belcher's

trial.

As for Steven George's plea agreement, "the jury was well informed

about [it] and the possible impact that it had on his credibility." (C. 742

(citing R. 1032 (counsel's closing emphasized that death was taken off the

table in exchange for George's plea)).) As the circuit court found, "Belcher

115 CR-2023-0206

fails to plead any facts explaining how evidence of the dismissal of [other,

less significant] charges would have changed the result of his trial, when

arguments that the witness avoided the death penalty by testifying, did

not." (C. 742.) This is also true because the dismissal of any lesser

charges was of little benefit to Steven George because it would not result

in him serving a shorter time in prison when his plea agreement to the

capital-murder charge required him to serve the rest of his life in prison.

This claim regarding Steven George was properly summarily dismissed.

The circuit court also properly summarily dismissed Belcher's claim

that counsel was ineffective for failing to impeach Chylli Bruce based on

her allegedly inconsistent statements. Belcher contends that Bruce

initially denied knowing anything about Samantha or what happened to

her, that she denied any romantic relationship with Belcher at trial (this

contention is directly refuted by trial testimony that Belcher told Bruce

he loved her and that they had a sexual relationship), that there were

inconsistent details regarding the drug use in the group that night

(specifically that, at Marcus George's trial, she testified that only Belcher

used drugs; however, the circuit court found this to be refuted by the

record from Marcus George's trial, at which she later testified that all of

116 CR-2023-0206

them were using drugs (C. 744)), that there were inconsistent details

regarding which of Samantha's items were burned and in what, a pile or

a barrel (the circuit court found that Bruce gave "substantially the same

testimony" regarding the fire and burning of Samantha's items at both

trials), conflicting details of who walked into the woods with Samantha

(although Belcher himself testified at trial that he and Steven George

took Samantha into the woods), that there were inconsistencies

regarding what Samantha was bound with that night, and that there

were inconsistencies about whether Belcher agreed with Marcus George's

statement that they needed to kill Samantha (as Bruce testified at trial)

or rejected that idea (as Bruce stated in her previous statements to

police).

The circuit court noted that Bruce was asked at trial about her prior

statements and that she testified that she was not truthful before her

plea agreement with the State. The circuit court found that "Belcher's

failure to explain how trial counsel could have impeached Bruce with

statements that she had already disavowed is fatal to his claim." (C. 745.)

The circuit court further found that "it is clear on the face of the record

that no material inconsistencies existed" and, thus, that "trial counsel

117 CR-2023-0206

cannot have been ineffective for failing to exploit them." (C. 747.) We

agree and further note that Belcher testified at his trial and had an

opportunity to refute any inaccurate statements, but he did not. Indeed,

Belcher's testimony was substantially similar to the testimony of Steven

George and Bruce. Belcher acknowledged that his codefendants were

going to kill Samantha and simply told them: "Don't kill her here [at his

shop]." (TR. 965.) According to Belcher, Steven George tied Samantha

up on his own, but Belcher admitted telling George, "[w]e've got to get

out of this" and that he "pick[ed] her up with Steven George." (TR. 966.)

Belcher also admitted putting Samantha in his car and taking her to his

house. (TR. 966.) Belcher further admitted that he pushed "her back in

the car" that he was driving and that he helped put Samantha in his

trunk. (TR. 969, 971.) Belcher even admitted that he and Steven George

took Samantha out of the trunk and "sat her a few feet off on the edge of

the woods in the bushes." (TR. 975.)

Considering the relative insignificance of any inconsistencies in

Bruce's testimony, as the circuit court found, "trial counsel cannot have

been ineffective for failing to exploit them." (C. 747.) This is especially

true because of the extremely damning testimony Belcher himself

118 CR-2023-0206

provided at trial. And, Belcher has never pleaded that, but for trial

counsel's deficient performance, he would not have testified. Moreover,

Belcher pleads no facts that would suggest a reasonable probability, that,

but for the inconsistencies in Steven George's and Bruce's testimony, the

outcome of his trial would have been different.

As for Belcher's contention that trial counsel did not present

Bruce's "full" motive to reach a plea agreement with the State and testify

against Belcher, the circuit court stated:

"Belcher fails to plead what, if any documentation of these crimes exists, how the alleged charges were disposed of, whether they were indeed linked to her plea deal in any way, or what her answers would have been had she been asked 'about her motive to provide favorable testimony.' … Thus, Belcher fails to plead facts that would show how trial counsel could have in fact impeached Bruce, or how it would have changed the result of the trial."

(C. 747.)

For all these reasons, this claim was both insufficiently pleaded and

meritless.

B. DNA Evidence

Belcher next contends on appeal, as he did in his petition, that trial

counsel failed to adequately challenge the State's evidence that his DNA

was found on the silver Gerber knife that belonged to Steven George.

119 CR-2023-0206

According to Belcher, with more vigorous challenges, there is a

reasonable probability that the jury would have discounted the evidence

that his DNA was on the Gerber knife.

First, according to Belcher, trial counsel should have presented

alternative explanations for why his DNA was on the knife handle,

challenged the degree of probability that the DNA was Belcher's, and

more vigorously challenged the presumptive evidence of blood on the

knife. Belcher contends that an expert could have testified that it is

"impossible" to know how a person's DNA came to be on a particular item

and then speculates that, because the deputy who collected the item also

touched "a large number of items that could have had Belcher's DNA on

them during his search of Mr. Belcher's car," there could have been a

transfer of Belcher's DNA from another item onto the knife. (C. 95-96.)

Second, Belcher contends that counsel failed to present evidence or

thoroughly cross-examine the State's expert to show that the DNA

testing was prone to bias because the test was not blind but was

conducted in reference to known DNA samples from "suspects," which,

he says, "can yield a high rate of false inclusions" and can influence

subjective judgments made during analysis. (C. 99-100.)

120 CR-2023-0206

Third, Belcher contends that counsel should have more vigorously

challenged the "presumptive presence of blood" and introduced

"alternative explanations" that, instead of being the murder weapon, the

knife could have been used to cut off Samantha's fingernails and/or that

the knife could have animal blood on it because Steven George "used to

work in deer processing." (C. 103.) According to Belcher, "trial counsel

failed to challenge the complete lack of evidence supporting the State's

theory that [Samantha] was killed by the Gerber pocket knife."

These contentions were insufficiently pleaded and without merit.

As the circuit court noted, "the defense's theory was clearly that

Belcher's co-defendants were more culpable than him in Samantha's

murder, and that Steven George was Samantha's ultimate killer." (C.

749.) Belcher's counsel relied on the State's DNA evidence to support its

theory that Steven George was the killer, explaining in its opening

statement, "what the DNA evidence does is say that Steven George is the

killer because there's DNA evidence of Samantha Payne's blood on

Steven George's shirt. … [Belcher's] DNA is excluded from that shirt."

(TR. 413-14.) During its cross-examination of Inv. Richard Wilkins,

Belcher's counsel elicited with clarity that all the State could say about

121 CR-2023-0206

the Gerber knife was that: one, it had Belcher's DNA on it; two, the expert

could not determine whether Samantha's DNA was on the knife; three,

"that knife was found with Steven George and not Michael Belcher;" and,

four, it was merely "possible," based on Steven George's self-serving

statements (provided to avoid the death penalty), that it could have been

the murder weapon (even though the State was unable to determine

cause of death). (TR. 807-08.) Belcher's counsel then emphasized, in the

cross-examination of the State's DNA expert, that the major contributor

of the stain on Steven George's t-shirt was Samantha and that Belcher

was expressly excluded as a contributor. (TR. 904-08.) Then, Belcher's

counsel argued, in pertinent part, during closing arguments as follows:

"We have the Gerber knife that belonged to Steven George that was found on the side of the road by Steven George, by Chylli Bruce. Right there together. Steven George's knife by Steven George. The knife was presumptively positive for blood, but they can't say whether or not it was Samantha Payne's blood. Ladies and gentlemen of the jury, I submit to you, if that knife was stuck in a person, then there would be that person's DNA on that knife.

"But they can't tell you that Samantha Payne's DNA was on that knife 'cause it wasn't stuck in Samantha Payne. There were no stab wounds on Samantha Payne's body. The medical examiner testified he saw no indication that she had been stabbed. There were no marks on any bones that indicated that she had been stabbed, no marks on her body.

122 CR-2023-0206

"So the State of Alabama presented to you this Gerber knife with Mr. Belcher's DNA on it. Maybe it's the murder weapon; maybe it's not. Maybe it's the knife. I don't know. The knife doesn't tell us anything about whether or not it was used to kill Samantha Payne, and it surely doesn't tell us that Michael Belcher intended for Samantha Payne to die.

"The State of Alabama has also brought you the jeans on South Sandy Road. The jeans that were, again, by Steven George and Chylli Bruce. That's where they were found. Not out in the woods, but up there with them where they were. And the knife went to the Hale County Jail with Steven George because all of these things were with Steven George. We have Steven George's clothes, his shirt with Samantha Payne's DNA on it, which was on Steven George, which went with Steven George to the Hale County Jail 'cause it was his.

"And then, of course, there was the cellphone with Samantha Payne's blood on it, her DNA, that was also with Steven George. So all the things that they've shown you to show you that Michael Belcher intended for Samantha Payne to die, actually Steven George had them. I think that that's important.

"And then we have Samantha Payne's decomposed body. Her body tells us nothing about how she died, nothing whatsoever. The medical examiner couldn't determine it. Don't know if she was stabbed. … Sure don't know who stabbed her, if she was stabbed."

(TR. 1028-29.)

Based on the trial record, Belcher's counsel's performance was

within the wide range of reasonable professional assistance. Belcher's

trial counsel clearly relied on the State's DNA evidence to bolster its

123 CR-2023-0206

theory that Steven George killed Samantha, which was a particularly

reasonable theory because there was far more DNA evidence that

implicated Steven George than implicated Belcher. Samantha's DNA

was found only on items that belonged to Steven George, and, although

Steven George's knife had Belcher's DNA on it, the knife did not have

Samantha's DNA on it; nor was it even determined that Samantha's

death was caused by stabbing. Rather, Belcher's counsel elicited on

cross-examination that because Samantha's DNA was not found on the

knife and because her cause of death had not been determined, it was

merely a "possibility" that the knife was the murder weapon, and this

possibility was based on Steven George's self-serving statements.

Indeed, the knife was found next to Steven George and processed with

him when he was arrested, and Steven George's t-shirt tested positive for

Samantha's DNA. Thus, the circuit court did not abuse its discretion by

finding that "counsel executed a reasonable strategy concerning the DNA

evidence." (C. 750.) Indeed, as the circuit court recognized, "[h]ad

counsel undercut the validity of the DNA evidence, the defense could not

have relied on this evidence to support its own theory." (C. 750.)

"Without the DNA evidence, counsel would have been left with only

124 CR-2023-0206

Steven George's plea agreement and the fact that he stole Samantha's

car to support the defense's theory." (C. 750.) Belcher pleaded no facts

to show "how no reasonable counsel in trial counsel's position would have

failed to undercut his own strategy by challenging the DNA evidence."

(C. 750.)

We further note that some of the information that was elicited could

have been regarded as speculative based upon defense counsel's cross-

examination. For example, Belcher's counsel got the State's DNA expert

to admit that she did not know "how DNA is deposited on items because

[she] was not there." (R. 900.) Belcher's petition also failed to explain

the particulars of his proposed expert's opinions, including what alleles

are, what happens when alleles are dropped, how much more or less

closely the match could be based on dropping alleles. Nor does Belcher

plead what questions should have been asked of the State's expert on

cross-examination, what the witness would have said, and how that

would have been beneficial. See, e.g., A.G. v. State, 989 So. 2d 1167, 1173

(Ala. Crim. App. 2007) (holding that ineffective-assistance claims were

insufficiently pleaded when the petitioner did not plead what questions

should have been asked and "how those questions" would have resulted

125 CR-2023-0206

in favorable testimony). In addition, Belcher's contention that another

DNA expert could have undermined the State's expert's testimony is

speculative and insufficient to show prejudice. For example, Belcher

speculates that his DNA could have been transferred because someone

touched other items Belcher touched. See, e.g., McMillan v. State, 258

So. 3d 1154, 1179 (Ala. Crim. App. 2017) (affirming the dismissal of a

postconviction claim based on speculation about what an expert "might

have found").

Moreover, Belcher's contention that counsel failed to challenge the

State's characterization of the knife as the murder weapon is refuted by

both counsel's opening and closing arguments and cross-examination, as

well as by the State's own closing argument that acknowledged that the

State did not know the cause of Samantha's death. The State argued at

trial: "Did she simply succumb to injuries … [f]rom the kicking, the

beating, the stomping, … [d]id she die from exposure … [or was it] a knife

to her neck? We'll never know." (TR. 1015.) As the circuit court

recognized, it was clear that Samantha's DNA was not found on the knife

and that presenting alternative theories about whose blood may been on

the knife could have been damaging because it would have "implied that

126 CR-2023-0206

it was Samantha's blood on the knife." (C. 763.) "Thus, counsel appears

to have made the strategic choice not to introduce evidence that it was

indeed Samantha's blood on the knife, and Belcher fails to explain how

no other counsel in trial counsel's position would have done the same."

(C. 763.)

Finally, Belcher failed to plead, particularly based on the trial

record and the circuit-court judge's first hand observations of the trial (as

he was also the trial-court judge), how, but for these alleged errors, there

is a reasonable probability that the result of his trial would have been

different.

For these reasons, this claim was both insufficiently pleaded and

meritless and was properly summarily dismissed. Moreover, Belcher's

reliance on Hinton v. Alabama, 571 U.S. 263 (2014), to argue otherwise

is misplaced. In Hinton, defense counsel was ineffective for failing to hire

an expert because he had a mistaken belief that funds for an expert were

not available and because "the core of the prosecution's case was the state

experts' conclusion that the six bullets had been fired from the Hinton

revolver, [which] effectively required a competent expert on the defense

side." Id. at 273 (emphasis added). Here, however, the DNA evidence

127 CR-2023-0206

was not the "core" of the State's case. If anything, the DNA evidence

presented at Belcher's trial was more supportive of Belcher's theory that

Steven George murdered Samantha than the State's theory that Belcher

was responsible for Samantha's death. Thus, Hinton does not support

Belcher's argument that his trial counsel was ineffective.

C. Cross-examination of Law-Enforcement Witnesses

Third, Belcher's entire appellate "argument" regarding counsel's

cross-examination of law-enforcement witnesses is:

"Investigators Wilkins and Bryant, who conducted the State's investigation, admitted at trial that, after questioning Steven George, they never considered alternative theories of events other than those presented by Steven George. (TR. 717-18, 738-30.) As pled in the petition, counsel failed to cross-examine investigators on the ways in which they unreasonably limited their investigation by failing to: search the residences of Mr. Belcher's co-defendants and the abandoned trailer on Haysop Church Road where co- defendants testified the victim was brought (C. 104-05); recover numerous pieces of evidence, including Marcus George's vehicle, Chylli Bruce's knife and clothes, and a burn barrel where Ms. Payne's fingernails, jewelry, and clothes were allegedly discarded (C. 104-07); collect DNA samples from co-defendants Marcus George and Alyssa Watson (C. 107); submit numerous items for forensic analysis, including items used to tie Ms. Payne to the tree (C. 107-08); and photograph key pieces of evidence, including Ms. Payne's car while it was still located at the Harrisburg Bridge. (C. 107- 08). Counsel also failed to question investigators about inconsistencies between the locations where evidence was found and the co-defendants' testimony. (C. 105-06); see 128 CR-2023-0206

United States v. Cronic, 466 U.S. 648, 656 (1984); Smith [v. Wainwright], 777 F.2d [609,] 617 [(11th Cir. 1985)].

"Had counsel cross examined law enforcement witnesses about the numerous gaps in the State's investigation, it would have introduced reasonable doubt about the State's case, and there is a reasonable probability that Mr. Belcher would not have been convicted of murder or sentenced to death. See Strickland [v. Washington], 466 U.S. [668,] 694 [(1984)]. Because Mr. Belcher's allegations regarding the gaps in the State's investigation are sufficiently pled and facially meritorious, he should have been entitled to an evidentiary hearing. See [Ex parte] Hodges, 147 So. 3d [973,] 976 [(Ala. 2011)]; [Ex parte] Land, 775 So. 2d [847,] 852."

(Belcher's brief, pp. 86-88.)

As the State asserts, because Belcher failed to present this Court

with any argument showing how the circuit court erred when it

summarily dismissed this claim of ineffective assistance of counsel, this

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

thus, waived on appeal. See, e.g., Wimbley v. State, 387 So. 3d 213, 231

(Ala. Crim. App. 2022).

Moreover, even if Belcher had not waived this argument, the circuit

court properly dismissed this claim as being insufficiently pleaded

because Belcher did not plead what questions should have been asked,

what evidence could have been discovered, and how revealing these

deficiencies and alleged inconsistencies in the investigation would have

129 CR-2023-0206

changed the outcome of his trial, particularly considering his own

testimony at trial, the overwhelming evidence against him (including the

hair and blood inside his vehicle's interior and trunk), and the fact that

he has never argued or pleaded that he would not have testified but for

counsel's deficiencies. See, e.g., A.G. v. State, 989 So. 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 and "how those questions" would have resulted

in favorable testimony). Furthermore, " ' " '[t]he scope of cross-

examination is grounded in trial tactics and strategy, and will rarely

constitute ineffective assistance of counsel.' " ' " Stanley v. State, 335 So.

3d 1, 37 (Ala. Crim. App. 2020) (citations omitted). Regardless, Belcher,

at best, speculates that a more extensive cross-examination would have

changed the result, 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).

D. Voluntary-Intoxication Defense

Belcher further contends, as he did in his petition, that his trial

counsel were ineffective because they did not "present a voluntary

130 CR-2023-0206

intoxication defense, which could have negated the element of intent

necessary for a conviction of capital murder, reducing the offense to

manslaughter," and, more specifically, for not obtaining and presenting

testimony "from an expert in psychopharmacology." (Belcher's brief, p.

88.) The circuit court properly summarily dismissed this claim as being

both insufficiently pleaded and meritless. (C. 773.)

In dismissing this claim, the circuit court correctly noted:

" '[E]vidence that the defendant ingested alcohol or drugs, standing alone,' will not support an intoxication defense. Pilley v. State, 930 So. 2d 550, 562 (Ala. Crim. App. 2005). Rather, '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.' Lee v. State, 898 So. 2d 790, 838 (Ala. Crim. App. 2001). See also Spencer v. State, 58 So. 3d 215, 231-32 (Ala. Crim. App. 2008); Harris v. State, 2 So. 3d 880, 910-12 (Ala. Crim. App. 2007). '[T]o negate the specific intent required for a murder conviction, the degree of the accused's intoxication must amount to insanity.' Whitehead v. State, 777 So. 2d 781, 783 [(Ala. Crim. App. 1999)]."

(C. 773-74.)

Considering the legal requirement that the degree of the accused's

intoxication must amount to insanity to support an intoxication defense

and manslaughter instruction, the circuit court properly recognized that

Belcher's claim was insufficiently pleaded. In addition, it is notable that,

131 CR-2023-0206

although Belcher pleads that "[e]ffective counsel would have elicited

testimony from [him] as to the extent of his drug use and the impact of

methamphetamine on his mental state at the time of the crime, including

his level of intoxication, and the psychoactive symptoms that he was

experiencing" (C. 109-10), Belcher's postconviction counsel also

"fail[e]d to plead the amount of [methamphetamine] he took and its impact on his mental state at the time of the crime, as well as how his [methamphetamine] use would have justified an intoxication instruction. The bare allegation that Belcher ingested an unspecified amount of [methamphetamine] during an unspecified period of time before the murder is not sufficient to establish that he was intoxicated to the point of insanity and unable to form intent to kill at the time of the murder."

(C. 774.) We agree with the circuit court that this claim was insufficiently

pleaded and properly summarily dismissed. See, e.g., Mashburn, 148 So.

3d at 1126 (holding that Mashburn's bare allegations were not sufficient

to establish that he was intoxicated to the point that he was unable to

form intent because he "failed to allege how much methamphetamine he

had taken, how much or what prescription drugs he had taken, or exactly

when he had taken the methamphetamines and prescription drugs"), and

Connally v. State, 33 So. 3d 618, 623 (Ala. Crim. App. 2007) (holding that

Connally's claim that his intoxication was a viable defense to murder was

132 CR-2023-0206

insufficiently pleaded because he "failed to allege how much he had to

drink the night of the crime, how long before the crime he had been

drinking, or any other facts indicating that his alleged intoxication

amounted to insanity").

As the circuit court held, Belcher's contention -- that Dr. Susan

Skolly-Danziger could have testified "that it is likely that [he] was

continuing to experience the psychoactive effects of methamphetamine

on his functioning for many hours after he stopped using" -- is also

insufficiently pleaded because, again, the petition does not allege how

much methamphetamine Belcher took and when Belcher took it.

Moreover, the allegations are pure speculation that Dr. Skolly-Danziger

would testify that Belcher was "likely" under the influence and that it

was "likely" "he exhibited poor decision making, a lack of behavioral

insight, and an indifference to consequences." (C. 111.) Moreover,

Belcher never pleaded that his "likely intoxication" amounted to

"insanity." Nor did Belcher plead any facts to suggest that, but for

counsel's errors, there is a reasonable probability the outcome of his trial

would have been different.

133 CR-2023-0206

We further note that Belcher's contentions also appear to be refuted

by the evidence presented at trial, particularly his own testimony. (See,

e.g., TR. 955 (Belcher said he was high but working on installing "a clutch

basket" in a motorcycle), TR. 956-57 (Belcher was busy working other

than stopping to get high), TR. 959 (Belcher "bl[e]w everybody off to go

back to finish working on this motorcycle" because "[t]he customer was

really rushing [him] to get it out"), TR. 969 (Belcher was capable of

driving), TR. 970 (Belcher made the decision to get Samantha out of his

car and leave), TR. 970 (Belcher was concerned about his car being in a

ditch and was able to use an old tire to push it out without "busting the

radiator"), and TR. 979 (when picked up by a police officer later, Belcher

said he had just "been riding around drinking with some friends" and

"didn't want to admit I was using methamphetamine to a police officer").)

Based on Belcher's testimony, there is no indication that he was

substantially impaired, much less to a degree that amounted to insanity.

As previously noted, " '[t]he reasonableness of counsel's actions may be

determined or substantially influenced by the defendant's own

statements or actions.' " Washington v. State, 95 So. 3d 26, 52 (Ala.

134 CR-2023-0206

Crim. App. 2012) (quoting Jones v. State, 753 So. 2d 1174, 1191 (Ala.

Crim. App. 1999)).

In sum, this claim was insufficiently pleaded, and, considering the

evidence presented at trial, meritless.

E. Failure to Object

Belcher's final guilt-phase ineffective-assistance-of-counsel claim

begins with an argument that the State improperly used his "mug shot"

during voir dire and ends with a general contention that trial counsel was

ineffective for failing to object to "numerous other violations" of his

constitutional rights at trial. As for the "numerous other violations,"

Belcher merely cites his petition and offers no argument or citation to

legal authorities. Belcher also fails to offer any explanation regarding

how the circuit court's dismissal of these "numerous violations" was

erroneous. Accordingly, as to these alleged violations, Belcher's brief

does not comply with Rule 28(a)(10), Ala. R. App. P. Thus, these

contentions are waived.

As for Belcher's one argument that "[c]ounsel failed to protect [him]

from the State's prejudicial use of his mugshot during voir dire"

135 CR-2023-0206

(Belcher's brief, p. 91), this argument was dismissed by the circuit court

because it was insufficiently pleaded. We agree with the circuit court.

Belcher recognizes that he raised the claim that the mug shot was

erroneously used during voir dire on direct appeal. He argues, however,

that this Court rejected this claim of error merely because "the record

does not include a copy of the 'billboard' that was displayed to the jury."

Belcher, 341 So. 3d at 255. However, this Court further noted that

"[t]here is nothing in the record that suggests that the photograph of

Belcher contained any criminal history." Id. at 256. "Nor is there any

indication that the photograph related to a case separate from the one for

which Belcher was on trial." Id. Interestingly, although we could not

find error because of counsel's failure to show any prejudice in the direct

appeal of his conviction, Belcher's postconviction petition also did not

include the photograph and, further, failed to plead any facts that, if true,

would show that the "mug shot" was inadmissible and, thus, that trial

counsel's failure constituted deficient performance and that Belcher was

prejudiced by counsel's actions. Glaringly absent from Belcher's petition

is any description of the "mug shot." As on direct appeal, Belcher

provides no indication of whether the photograph was simply Belcher's

136 CR-2023-0206

head or face or included both a frontal and profile view. Likewise, there

is no indication as to what Belcher was wearing, what the background

looked like, or whether the photograph included a date that would have

implied that Belcher had a prior criminal record. See, e.g., McNabb v.

State, 887 So. 2d 929, 973 (holding that there was "no error, plain or

otherwise, in the admission of the mug shot" because, although "the State

did not have a demonstrable need to introduce the mug shot," the

photograph itself did not imply that McNabb had a prior criminal record

and the manner in which the photograph was introduced did not draw

attention to its sources or implications"). Moreover, Belcher later

testified about his arrest and lack of knowledge as to how jail works and

admitted that, although he had been arrested before, he had "never been

inside of a jail for very long." (TR. 982.)

F. Counsel's Deficient Performance Was Prejudicial

Belcher also restates the claim in his petition that,

"[i]f counsel had presented a coherent and consistent defense throughout the trial, including that the co-defendant testimony was not credible, the State's investigation and forensic evidence was unreliable, and that Steven George and Chylli Bruce killed Samantha Payne, the jury would have assessed the relative culpability of Mr. Belcher and his co- defendants differently (C. 118-22), and there is a reasonable

137 CR-2023-0206

probability that [he] would not have been convicted of capital murder or sentenced to death."

(Belcher's brief, p. 93.) Belcher further restates his contention that

"[t]hese errors, individual and collectively denied [him] his rights to

effective assistance of counsel and due process." (Belcher's brief, p. 93.)

However, Belcher makes no substantive argument addressing these

contentions or the circuit court's summary dismissal of this claim. Thus,

this claim is waived because it does not satisfy the requirements of Rule

28(a)(10), Ala. R. 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"). Moreover, this claim has already been addressed and

determined to have been properly dismissed in other sections of this

Court's opinion.

V. Discovery Request

Belcher also contends that the circuit court erred by denying his

request for "discovery and access to neuroimaging," which he filed before

filing his petition. According to Belcher, he was entitled to this prefiling

discovery "because, under Alabama Code section 13A-5-53.1(h), he would

138 CR-2023-0206

not be able to amend his petition to add information obtained in discovery

after filing" and, without this discovery, "restrictions on amendments

created by the FJA would otherwise deny him meaningful ability to use

discovery." (Belcher's brief, pp. 93-94.)

In considering this discovery claim, we recognize that " ' "[w]e 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. 2005) (quoting Ex parte Mack, 894 So. 2d 764, 768 (Ala. Crim.

App. 2003), quoting in turn People v. Johnson, 205 Ill. 2d 381, 275 Ill.

Dec. 820, 793 N.E. 2d 591 (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. 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)).

Belcher contends that in his initial prefiling discovery motions, as

well as in his renewed discovery motions after he filed his petition, "he

139 CR-2023-0206

detailed the records and testing that he needed in order to support

specific anticipated claims." (Belcher's brief, p. 93.) Belcher does not,

however, explain in his brief how his motions established "good cause"

for discovery. Belcher also fails to explain how and why the "good cause"

standard "must yield to the statutory structure of the FJA," other than

stating that "pre-filing discovery would facilitate the purpose of the FJA

to require earlier litigation and expedite review." (Belcher's brief, p. 94.)

Accordingly, Belcher's claim is insufficient pursuant to Rule 28(a)(10).

Regardless, the circuit court did not abuse its discretion by denying

Belcher's discovery request because Belcher 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 847, 852 (Ala. 2000), overruled on other grounds, State v. Martin,

69 So. 3d 94 (Ala. 2011). The FJA did nothing to change Alabama's

approach to postconviction discovery. Moreover, "good cause" cannot be

shown for claims that are "insufficiently pleaded, procedurally barred, or

meritless." Morris v. State, 261 So. 3d 1181, 1202 (Ala. Crim. App. 2016).

140 CR-2023-0206

Because "[w]e have held in the previous sections of this opinion that the

circuit court did not err by summarily dismissing [Belcher's] claims," "it

follows that [Belcher] did not meet the good-cause standard for obtaining

postconviction discovery." Id. Thus, the circuit court did not abuse its

discretion by denying Belcher's postconviction discovery requests.

VI. The Fair Justice Act

Belcher's final argument is that application of the FJA violated his

"rights to due process, access to courts, and effective assistance of

postconviction counsel because the time provided is simply inadequate

to fully investigate all claims for postconviction relief." (Belcher's brief,

p. 96.) Belcher further argues that "[t]he FJA's restrictions also violate

[his] right to equal protection because they arbitrarily apply only to

death-sentenced prisoners and not to individuals with lesser sentences"

and that the deadlines violate "separation of powers" principles because

they "undermine the ability of courts to appropriately manage their

dockets." (Belcher's brief, p. 97.) In support of his arguments, Belcher

contends that "[t]he FJA dramatically altered the procedures for post-

conviction review in capital cases by significantly shortening the time

available to investigate and develop claims, … prohibiting virtually all

141 CR-2023-0206

amendments after the petition is filed, … and imposing arbitrary

deadlines on circuit courts to rule …." (Belcher's brief, pp. 95-96.)

We agree with the circuit court that this claim was insufficiently

pleaded under Rules 32.3 and 32.6(b) and, thus, was properly summarily

dismissed by the circuit court in accordance with Rule 32.7(d), Ala. R.

Crim. P.

As the circuit court found, Belcher failed to plead any specific facts

to show that his constitutional rights were violated by the application of

the FJA to his petition. This is a particularly glaring insufficiency

considering that the Alabama Supreme Court's opinion in Ex parte

Marshall, 323 So. 3d 1188, 1199 (Ala. 2020), rejected nearly identical

contentions by Belcher and other petitioners who had been sentenced to

death because they did not raise a justiciable controversy in that the

claims were "largely hypothetical assumptions about the effect [of] the

FJA." The Alabama Supreme Court concluded that the claims were "not

ripe for adjudication ... because their claims are inherently fact-specific

and must be raised within the context of their six individual Rule 32

proceedings." Id. Although Belcher has now raised these contentions in

his individual postconviction proceeding, he has still failed to plead facts

142 CR-2023-0206

showing how his constitutional rights were specifically and particularly

violated by application of the FJA.

Belcher alleged in his petition that "the COVID-19 pandemic has

precluded [his] ability to adequately investigate and prepare his Rule 32

petition" because the rule of the Alabama Department of Corrections

that required "suspension of in-person visitation ... substantially

impeded counsel's ability to adequately communicate with [Belcher] and

gather information" and "conduct any expert evaluations of Belcher,"

that many "offices from which records need to be obtained are closed or

operating on a limited staff and thus unable to fulfill record requests in

a timely fashion. In addition, critical witnesses live at a substantial

distance from Alabama or are at high risk for severe COVID infection,

making in-person meetings unsafe." (C. 208-10.) However, Belcher has

failed to explain how his investigation was unconstitutionally hampered,

particularly considering that, as the circuit court stated in its dismissal

order, "Rule 32 counsel was appointed to Belcher on April 10, 2019.

Thus, Belcher had almost a full year before the state-wide shut down to

investigate, with counsel, his Rule 32 claims." (C. 839-40 (emphasis

added).) And, the FJA clearly states that "[p]ost-conviction remedies ...

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shall be pursued concurrently and simultaneously with the direct

appeal." § 13A-5-53.1(b). Moreover, in-person court proceedings were

not suspended because of the COVID-19 pandemic until March 13, 2020,

see Ex parte Brown 368 So. 3d 951, 953 (Ala. 2022), giving Belcher 28

more days of investigation after his direct appeal was filed before any

restrictions began, meaning that he actually had 338 days to investigate

claims before any COVID-19 restrictions. In addition, in-person

hearings resumed May 13, 2020, and jury trials resumed after

September 14, 2020. See id. at 953. Meanwhile, Belcher filed his

petition on May 12, 2021, almost one year after in-person hearings

resumed. In total, Belcher's postconviction counsel had the benefit of

763 days to investigate postconviction claims between counsel's

appointment and the filing of his petition, and only 62 days of that time

were during the suspension of in-person hearings. Furthermore,

Belcher did not plead why, during the relatively brief period of COVID-

19 restrictions, other means of investigation could not have been

employed. See, e.g., Ex parte Miller, 335 So. 3d 1151, 1155 (Ala. 2021)

("Nothing before us indicates that [he] could not have obtained the

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[information] over the telephone or wearing masks and employing social

distancing.").

In sum, Belcher pleaded no facts to show that the FJA deprived him

of effective assistance of counsel, violated his right to due process,

violated his right to equal protection, or violated separation-of-powers

principles.

Conclusion

For these reasons, Belcher is due no relief on his postconviction

claims, and the judgment of the circuit court is affirmed.

AFFIRMED.

Windom, P.J., concurs in part and concurs in the result, with

opinion, which Minor, J., joins. Kellum, J., concurs in the result.

Anderson, J., recuses himself.

145 CR-2023-0206

WINDOM, Presiding Judge, concurring in part and concurring in the

result.

I concur with the main opinion, except for Parts II and VI. As to

those parts of the main opinion, I concur only in the result.

Minor, J., concurs.