Peter Capote v. State of Alabama

• Court: Court of Criminal Appeals of Alabama
• Decided: May 5, 2023
• Docket: CR-20-0537
• Status: Published

Opinion

Rel: May 5, 2023

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) 229-0649), 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, 2022-2023 _________________________

CR-20-0537 _________________________

Peter Capote

v.

State of Alabama

Appeal from Colbert Circuit Court (CC-16-340.60)

McCOOL, Judge.

Peter Capote appeals the Colbert Circuit Court's summary

dismissal of his Rule 32, Ala. R. Crim. P., petition for postconviction

relief. That petition challenged Capote's conviction for capital murder,

see § 13A-5-40, Ala. Code 1975, for which he was sentenced to death, and CR-20-0537

his conviction for first-degree assault, see § 13A-6-20, Ala. Code 1975, for

which he was sentenced to 20 years' imprisonment.

Facts and Procedural History

In 2018, Capote was convicted of murder made capital because it

was committed through the use of a deadly weapon while the victim was

in a vehicle, see § 13A-5-40(a)(17), Ala. Code 1975, and he was sentenced

to death for that conviction. Capote was also convicted of first-degree

assault and was sentenced to 20 years' imprisonment for that conviction.

In its opinion affirming Capote's convictions and sentences, this Court

set forth the facts that gave rise to those convictions:

"In early 2016 Thomas Hubbard was the leader of the gang Almighty Imperial Gangsters. That gang consisted of Hubbard, Capote, Benjamin Young, De'Vontae Bates, Austin Hammonds, Michael Blackburn, and Trey Hamm. On February 28, 2016, Hubbard's residence was burglarized. Several items were taken during the burglary, including Hamm's Xbox video-game console. Hubbard informed the gang that he was going to find out who had burglarized his house and kill him or her.

"Hammonds and Bates learned that Ki-Jana Freeman was selling an Xbox in an online marketplace. They suggested to Hubbard that Freeman might have been the person that had stolen Hamm's Xbox. The gang held a meeting and decided to kill Freeman if he was responsible for the burglary. The gang formulated a plan in which Hammonds would meet with Freeman to determine if the Xbox Freeman was selling was the one that had been stolen during the burglary.

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Hammonds contacted Freeman via an instant message on the social-media Web site Facebook, asking if Freeman had a green, Halo Edition Xbox for sale. Freeman and Hammonds exchanged several messages about the Xbox, but they never met to conduct a transaction. Hammonds, though, represented to Hubbard that he had met with Freeman, telling Hubbard that he thought the Xbox Freeman was selling was the one stolen during the burglary.

"On March 1, 2016, Bates contacted Freeman, purportedly seeking to purchase acid, a hallucinogenic drug. Bates and Freeman agreed to meet at 10:00 p.m. at the Spring Creek Apartments. Bates did not go to the apartment complex; instead, Capote, Young, Hubbard, and Hamm went to the complex in a white truck and waited for Freeman to arrive. Bates sent a text message to Freeman asking him for his location and what kind of vehicle he was driving. Freeman responded that he was about to arrive at the apartment complex and that he was driving a blue Ford Mustang automobile. Bates relayed Freeman's response to his fellow gang members in the truck. When he arrived at the apartment complex, Freeman parked his Mustang in the back parking lot near a dumpster. The white truck pulled behind Freeman. Young and Capote got out of the truck and began firing their weapons at the Mustang. After firing multiple rounds, Young and Capote got back in the truck and left. Freeman was shot multiple times and was pronounced dead shortly after arriving at the hospital. Tyler Blythe, Freeman's friend who had ridden with Freeman to the apartment complex, was shot 13 times but survived his injuries.

"During the investigation, law-enforcement officers obtained a video from surveillance cameras at the apartment complex that had recorded the shooting. Hammonds and Bates identified Capote as one of the shooters in the video. Shawn Settles, Hubbard's cellmate at the county jail, gained Hubbard's trust and learned the location of an assault rifle used in the shooting. Settles told law-enforcement officers

3 CR-20-0537

where they could find the rifle, which led to its recovery. Testing of the rifle and the bullets established that the rifle had been used in the shooting."

Capote v. State, 323 So. 3d 104, 112-13 (Ala. Crim. App. 2020) (footnote

omitted).

For defendants who are sentenced to death after August 1, 2017,

the time for filing a Rule 32 petition is governed by the Fair Justice Act

("the FJA"), codified at § 13A-5-53.1, Ala. Code 1975. 1 In pertinent part,

the FJA states:

"(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. …

"(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

1The FJA does not apply retroactively to defendants who were sentenced to death on or before August 1, 2017. § 13A-5-53.1(j). 4 CR-20-0537

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)."

In this case, Capote filed the initial brief for his direct appeal on

April 5, 2019, and the Rule 32 petition he desired to file sought relief

under Rule 32.1(a) by asserting ineffective-assistance-of-counsel claims.

See Ex parte Pierce, 851 So. 2d 606, 614 (Ala. 2000) ("Rule 32.1(a) is the

… provision that allows a defendant to raise an ineffective-assistance-of-

counsel claim in a postconviction proceeding."). Thus, pursuant to § 13A-

5-53.1(c), Capote was required to file his Rule 32 petition within 365 days

of April 5, 2019. However, pursuant to § 13A-5-53.1(d), Capote sought

and was granted a 90-day extension, which extended the deadline for

filing the petition to July 6, 2020. 2

On July 1, 2020, Capote filed his Rule 32 petition with the

assistance of counsel. As a threshold matter, Capote's counsel requested

a stay of the Rule 32 proceedings, arguing that they had "not yet had a

full opportunity to investigate Capote's case and prepare a Rule 32

petition that present[ed] all of his claims." (C. 24.) In support of that

2The 90-day period actually expired on July 4, 2020, which was a Saturday. Thus, the deadline for filing the petition was extended to July 6, 2020. See Rule 1.3, Ala. R. Crim. P. 5 CR-20-0537

argument, Capote's counsel, who are based in New York, claimed that

they "took on [Capote's] postconviction representation" (C. 6) "in late

February 2020" (C. 231), "just as the COVID-19 pandemic hit" (C. 6), and

that, as a result of the pandemic, they had been unable to "travel[ ] to

Colbert County to interview people" (C. 7) or to have confidential

telephone conversations with Capote because his prison calls were

monitored. Capote's counsel noted, though, that "[w]hat [they] had seen

to date" in their "careful review of the trial record" indicated that Capote's

trial counsel had not provided him with effective representation, and they

raised multiple ineffective-assistance-of-counsel claims based upon that

review, with the caveat that they "suspect[ed] that there [were] still more

shortcomings to bring to the [circuit court's] attention." (Id.)

On July 14, 2020, the State filed an opposition to Capote's request

for a stay of the Rule 32 proceedings, arguing that the circuit court had

no power to issue a stay because, the State said, the FJA "does not

contemplate the granting of stays." (C. 29.) Alternatively, the State

argued that Capote "was first assigned Rule 32 counsel in June 2018"

and had "had consistent Rule 32 counsel since at least July 9, 2019." (C.

30.) Thus, according to the State, Capote had "had over two years in

6 CR-20-0537

which to investigate and pursue his Rule 32 claims" and had "been

represented by counsel" during "the majority of that time." (Id.) The

State also filed an answer to Capote's petition, arguing that his claims

were due to be summarily dismissed because they were insufficiently

pleaded or were without merit.

On March 15, 2021, the State filed a motion seeking a ruling on

Capote's petition, noting that, pursuant to the FJA, the circuit court was

required to rule on Capote's petition within 180 days of the date the

certificate of judgment issued in his direct appeal, see § 13A-5-53.1(e),

and that the deadline would expire in two days. The next day, the State

submitted a proposed order summarily dismissing Capote's petition, and,

the following day, the circuit court adopted the proposed order verbatim.

The circuit court's order did not acknowledge Capote's request for a stay.

Capote subsequently filed a motion to reconsider in which he argued,

among other arguments, that, by adopting the State's proposed order

verbatim, the circuit court had "failed to provide an independent review

of the issues." (C. 231.) The circuit court did not rule on that motion, and

Capote filed a timely notice of appeal.

Discussion

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On appeal, Capote raises multiple claims that, he says, require this

Court to reverse the summary dismissal of his Rule 32 petition.

I.

Capote first argues that the circuit court erred by adopting

verbatim the State's proposed order dismissing his Rule 32 petition. In

support of that argument, Capote cites Ex parte Ingram, 51 So. 3d 1119

(Ala. 2010), in which the Alabama Supreme Court addressed the same

claim. In reversing this Court's decision affirming the circuit court's

order in that case, the Alabama Supreme Court stated:

"[T]he general rule is that, where a trial court does in fact adopt the [State's] proposed order as its own, deference is owed to that order in the same measure as any other order of the trial court. In Dobyne v. State, 805 So. 2d 733, 741 (Ala. Crim. App. 2000), the Court of Criminal Appeals stated:

" ' " 'While the practice of adopting the [S]tate's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.' " '

"805 So. 2d at 741 (quoting other cases; emphasis added). In McGahee v. State, 885 So. 2d 191, 229-30 (Ala. Crim. App. 2003), the Court of Criminal Appeals stated that 'even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.' Cf. United States v. El Paso Natural Gas Co., 376

8 CR-20-0537

U.S. 651, 656, 84 S. Ct. 1044, 12 L. Ed. 2d 12 (1964) (expressing disapproval of the 'mechanical' adoption of findings of fact prepared by a party, but stating that such findings are formally those of the trial judge and 'are not to be rejected out-of-hand').

"In this unusual case, however, we cannot conclude that the above-stated 'general rule' is applicable. That is, despite the fact that [Judge William E. Hollingsworth] signed the June 8 order, we cannot conclude that the findings and conclusions in that order are in fact those of the court itself.

"The June 8 order begins as follows:

" 'Having considered the first amended Rule 32 petition presented to the Court, the State of Alabama's amended answer, the State of Alabama's motions to dismiss, the evidence presented at trial, and the events within the personal knowledge of the Court, the Court makes the following findings of fact and conclusions of law and summarily dismisses and denies the claims in Ingram's first amended Rule 32 petition.'

"(Emphasis added.) After a rendition of the facts of the case, the June 8 order states:

" 'The findings by the Court of Criminal Appeals [on direct appeal of Ingram's conviction] guide the Court in its resolution of the issues presented in the first amended Rule 32 petition. The Court is also relying on the trial transcript where necessary to support the Court's findings and the resolution of this Rule 32 petition. In addition, this Court presided over Ingram's capital murder trial and personally observed the performance of both lawyers throughout Ingram's trial and sentencing.'

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"(Emphasis added.)

"The obvious problem with the emphasized portions of the above-quoted passages from the June 8 order is that Judge [Jerry L.] Fielding, not Judge Hollingsworth, presided over Ingram's capital-murder trial. Although minor factual errors understandably find their way into orders drafted by trial courts in handling busy dockets, an error as to whether the judge in fact sat as the trial judge in a capital-murder trial and is basing his decision on personal observations and personal knowledge acquired by doing so is the most material and obvious of errors.

"….

"We are forced by the nature of the errors present in the June 8 order to reverse the judgment of the Court of Criminal Appeals. In the simplest terms, the patently erroneous nature of the statements regarding the trial judge's 'personal knowledge' and observations of Ingram's capital-murder trial undermines any confidence that the trial court's findings of fact and conclusions of law are the product of the trial judge's independent judgment and that the June 8 order reflects the findings and conclusions of that judge."

Ex parte Ingram, 51 So. 3d at 1122-25.

Capote argues that the circuit court's order in this case "include[s]

the same 'patently erroneous' statement regarding the judge's having

presided over the trial and having 'personal knowledge of the underlying

facts' that led the [Alabama Supreme] Court to reverse in Ex parte

Ingram." (Capote's brief, p. 17 (quoting Ex parte Ingram, 51 So. 3d at

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1125).) In support of that argument, Capote notes that Judge Harold

Hughston, Jr., presided over his trial and that Judge Jacqueline Hatcher

ruled on his Rule 32 petition, yet the order dismissing his petition

includes the following language:

"Finally, '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.' Ex parte Hill, 591 So. 2d 462, 463 (Ala. 1991). This provision is applicable in the present matter. Thus, in assessing Capote’s claims, 'if [this Court] has personal knowledge of the actual facts underlying the allegations in the petition, he may deny the petition without further proceedings so long as he states the reasons for the denial in a written order.' Boyd [v. State], 913 So. 2d [1113,] 1126 [(Ala. Crim. App. 2003)]." 3

(C. 188.)

It is true that Judge Hatcher's order acknowledges the principle

that a judge who presided over a defendant's trial can summarily dismiss

an ineffective-assistance-of-counsel claim based upon the judge's

personal observation of counsel's performance. It is also true that the

order states that "[t]his provision is applicable in the present matter,"

3Capote notes that the same language from Ex parte Hill, 591 So. 2d 462 (Ala. 1991), that was quoted in this part of the order was repeated once later in the order. 11 CR-20-0537

despite the fact that Judge Hatcher did not preside over Capote's trial.

However, nowhere in the order did Judge Hatcher state that she had in

fact presided over Capote's trial or that she had based her decision on her

personal knowledge of his counsel's performance. To the contrary, the

order states that Judge Hatcher's findings were based on "the pleadings

filed in this matter" (C. 182) and "the face of the record." (C. 194.) In

addition, we note that the language Capote cites is included in a part of

the order that sets forth other general principles of law that are typically

applicable in Rule 32 proceedings. (C. 185-88.) We also note that the

statement "[t]his provision is applicable in the present matter" is

qualified by the next sentence, which states that Judge Hatcher could

deny Capote's petition without further proceedings if she had personal

knowledge of his counsel's performance. Thus, we disagree with Capote's

argument that the circuit court's order in this case contains the same

"patently erroneous" statements that were present in Ex parte Ingram.

Id. at 1125, where the judge's order unequivocally stated that he had

presided over the petitioner's trial, that he had personally observed the

performance of the petitioner's counsel, and that he had based his

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findings in part on the knowledge he had gleaned from those

observations.

Capote notes, though, that the Alabama Supreme Court has

clarified that Ex parte Ingram "should not be read as entitling a

petitioner to relief in only those factual scenarios similar to those

presented in [that case]." Ex parte Jenkins, 105 So. 3d 1250, 1260 (Ala.

2012). Instead, the Court has explained: "A Rule 32 petitioner would be

entitled to relief in any factual scenario when the record before [the

reviewing] Court clearly establishes that the order signed by the trial

court denying postconviction relief is not the product of the trial court's

independent judgment." Id. However, the only additional facts Capote

cites in support of this claim are that the State submitted the 49-page

proposed order at 4:26 p.m. on March 16, 2021, and that the circuit court

signed the order the following day. But the mere fact that a circuit court

adopts a State's proposed order, even a somewhat lengthy one, the day

after the proposed order was submitted to the court is not a fact that

"clearly establishes" that the court's order was not the product of the

court's independent judgment. Ex parte Jenkins, 105 So. 3d at 1260. See

Mashburn v. State, 148 So. 3d 1094 (Ala. Crim. App. 2013) (affirming the

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circuit court's verbatim adoption of the State's 65-page proposed order,

which the court adopted two days after the State submitted it).

In short, the circuit court's order in this case does not contain the

same "patently erroneous" statements that were present in Ex parte

Ingram, id. at 1125, and there is nothing in the record that "clearly

establishes" that the order was not the product of the court's independent

judgment. Ex parte Jenkins, 105 So. 3d at 1260 (emphasis added). In

the absence of such evidence, "deference is owed to that order in the same

measure as any other order of the [circuit] court." Ex parte Ingram, 51

So. 3d at 1122. Thus, Capote is not entitled to relief on this claim. See

Lee v. State, 244 So. 3d 998, 1002 (Ala. Crim. App. 2017) (affirming the

circuit court's verbatim adoption of the State's proposed order because

the court's order "contain[ed] no patently erroneous statements as was

the case in Ex parte Ingram" and there was no indication in the record

that the order "was anything but the court's own independent

judgment").

II.

Capote next argues that the circuit court erred by refusing to grant

his request for a stay of the Rule 32 proceedings. Although the circuit

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court did not expressly rule on that request, Capote interprets the court's

summary dismissal of his petition as an implicit denial of the request.

(Capote's brief, p. 20.) In addressing this claim, we are mindful of the

fact that a circuit court has broad discretion in determining whether to

grant a request for a stay. Ex parte Doe, 344 So. 3d 877, 879 (Ala. 2021).

The basis for Capote's request for a stay was that his counsel had

"not yet had a full opportunity to investigate [his] case and prepare a

Rule 32 petition that present[ed] all of his claims" because his counsel

did not enter the case until "late February 2020," "just as the COVID-19

pandemic hit." The State's response was that a stay was unwarranted

because Capote "was first assigned Rule 32 counsel in June 2018" and

had "had consistent Rule 32 counsel since at least July 9, 2019." Thus,

according to the State, at the time Capote requested a stay, he had "had

over two years in which to investigate and pursue his Rule 32 claims"

and had "been represented by counsel" during "the majority of that time."

Capote has not disputed – either below or on appeal – that he was

first appointed Rule 32 counsel in June 2018 and that he has had

consistent Rule 32 counsel since July 2019. In fact, Capote's counsel

conceded at oral argument before this Court that, at the time they

15 CR-20-0537

requested a stay, Capote had been represented by Rule 32 counsel for

approximately two years. Thus, it appears to be undisputed that, at the

time Capote's counsel entered the case in February 2020, Capote had

been represented by other Rule 32 counsel for approximately 20 months

and had been represented by consistent Rule 32 counsel for the previous

7 months, which was ample time for his former counsel to investigate his

case for potentially viable postconviction claims.

Capote argues, however, that his former Rule 32 counsel "took no

action on his behalf" – an alleged fact that, he says, "is not surprising"

because "few post-conviction lawyers would have sprung into action"

before his direct appeal was resolved. (Capote's brief, pp. 21-22.) But

Capote never raised this argument below, even after the State made a

point of drawing the circuit court's attention to the fact that Capote had

long been represented by other Rule 32 counsel before his current counsel

entered the case. "We cannot consider evidence or factual assertions that

were not presented to the [circuit] court before it made its determination

on [Capote's request for a stay]." Ex parte Alabama Dep't of Labor, 214

So. 3d 356, 360 (Ala. Civ. App. 2015). See also Magwood v. State, 494 So.

2d 124, 138 n.3 (Ala. Crim. App. 1985) (considering only those facts that

16 CR-20-0537

were presented to the trial court in reviewing the court's denial of a

motion to suppress); and Moore v. Mikul, [No. 1200671, Jan. 21, 2022]

___ So. 3d ___, ___ (Ala. 2022) (" 'This Court cannot consider arguments

advanced for the purpose of reversing the judgment of a trial court when

those arguments were never presented to the trial court for consideration

or were raised for the first time on appeal.' " (quoting State Farm Mut.

Auto. Ins. Co. v. Motley, 909 So. 2d 806, 821 (Ala. 2005))). To hold that a

circuit court exceeded its discretion in refusing to issue a stay based on

facts that were never presented to the court would fly in the face of this

rule.

Given the facts that were presented to the circuit court, the court

could have reasonably concluded that Capote's former Rule 32 counsel

had been actively investigating his case for anywhere from 7 to 20

months before his current counsel entered the case. Indeed, although

Capote argues that "few post-conviction lawyers would have sprung into

action" before his direct appeal was resolved, the FJA requires that a

Rule 32 petition in a death-penalty case "shall be pursued concurrently

and simultaneously with the direct appeal." § 13A-5-53.1(b). Thus,

because Capote never alleged that his former Rule 32 counsel had

17 CR-20-0537

"t[aken] no action on his behalf," there was every reason for the circuit

court to believe that his former counsel had actively investigated his case.

And there was no reason for the circuit court to believe that Capote's

current counsel could not have consulted with his former Rule 32 counsel

to learn of any potentially viable postconviction claims that former

counsel had discovered. Moreover, despite Capote's claim that his

current counsel had "not yet had a full opportunity to investigate [his]

case," they were able to raise multiple ineffective-assistance-of-counsel

claims that they had discovered from their review of the record. For those

reasons, we cannot say that the circuit court exceeded its broad discretion

by refusing to issue a stay of the Rule 32 proceedings so that Capote's

current counsel could further investigate the case. Thus, Capote is not

entitled to relief on this claim.

III.

Capote's final argument is that the circuit court erred by summarily

dismissing his ineffective-assistance-of-counsel claims. Because the

circuit court based its ruling on a " 'cold trial record,' we apply a de novo

standard of review" in determining whether summary dismissal of

Capote's claims was proper. Harris v. State, [Ms. CR-19-0231, July 9,

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2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021) (quoting Ex parte Hinton,

172 So. 3d 348, 352 (Ala. 2012)).

"To prevail on a claim of ineffective assistance of counsel, the petitioner must meet the standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The petitioner must show: (1) that counsel's performance was deficient, and (2) that the petitioner was prejudiced by his counsel's deficient performance. 466 U.S. at 687, 104 S. Ct. 2052. 'To meet the first prong of the test, the petitioner must show that his counsel's representation fell below an objective standard of reasonableness. The performance inquiry must be whether counsel's assistance was reasonable, considering all the circumstances.' Ex parte Lawley, 512 So. 2d 1370, 1372 (Ala. 1987). ' "This court must avoid using 'hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance." ' Lawhorn v. State, 756 So. 2d 971, 979 (Ala. Crim. App. 1999) (quoting Hallford v. State, 629 So. 2d 6, 9 (Ala. Crim. App. 1992)). 'A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' Strickland, 466 U.S. at 689, 104 S. Ct. 2052. As the United States Supreme Court explained:

" '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

19 CR-20-0537

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'

"Strickland, 466 U.S. at 689, 104 S. Ct. 2052 (citations omitted). To meet the second prong of the test, the petitioner 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S. Ct. 2052. 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Id. 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.' Id. at 693, 104 S. Ct. 2052. 'The likelihood of a different result must be substantial, not just conceivable.' Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011).

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

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" ' "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). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must "identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment," Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating "that there is a

21 CR-20-0537

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S. Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient.'

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

Stanley v. State, 335 So. 3d 1, 22-24 (Ala. Crim. App. 2020).

"Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to summarily dismiss a petitioner's Rule 32 petition

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

"See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003); Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v. State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992). In addition, ' " '[w]here a simple reading of the petition for post-conviction relief shows that, assuming every allegation of the petition to be true, it is obviously without merit or is precluded, the circuit court [may] summarily dismiss that petition.' " ' Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011) (quoting Bishop v. State, 608 So. 2d 345, 347-48 (Ala. 1992) (quoting in turn Bishop v. State, 592 So. 2d 664, 667 (Ala. Crim. App. 1991) (Bowen, J., dissenting))). Summary disposition is also appropriate where the record directly refutes a Rule 32 petitioner's claim."

Shaw v. State, 148 So. 3d 745, 764-65 (Ala. Crim. App. 2013). With these

principles in mind, we address the circuit court's summary dismissal of

22 CR-20-0537

Capote's ineffective-assistance-of-counsel claims, which the court

dismissed on the basis that they were either insufficiently pleaded or

facially without merit.

A. Guilt-Phase Claims

1.

Capote's first ineffective-assistance-of-counsel claim alleged that

his counsel (1) acknowledged his affiliation with the Almighty Imperial

Gangsters during the opening statement and (2) "elicit[ed] detailed

testimony about the activities of the Almighty Imperial Gangsters" while

cross-examining three State's witnesses. (C. 14.) According to Capote,

by acknowledging his gang affiliation and eliciting evidence of the gang's

"activities," his counsel "gave the jury reason to believe that [he] was an

incorrigible criminal who was guilty of murder and should not live among

them." (Id.)

a. Defense Counsel's Opening Statement

We first address Capote's allegation that his counsel rendered

ineffective assistance by acknowledging his gang affiliation during the

opening statement. Specifically, Capote alleged that, even though "the

prosecutor did not mention gang affiliation in her opening address," his

23 CR-20-0537

counsel told the jury "that [Freeman's] murder was in direct response to

a burglary, which was an affront to the gang," and that the gang's

"original plan was to kidnap, torture, and kill [Freeman]." (C. 13.)

However, it was inevitable that Capote's gang affiliation and the reason

for Freeman's murder would be established at trial, and indeed they

were; as Capote noted on direct appeal, "the State mentioned Capote's

gang affiliation more than 40 times during the guilt and penalty phases

of trial," Capote, 323 So. 3d at 146, and the State presented evidence

indicating that Freeman was murdered because the gang believed he had

burglarized its leader's house. (R. 824.) And, although it is true that the

State did not present evidence regarding the gang's "original plan" to

kidnap and torture Freeman, it was reasonable for Capote's counsel to

believe that such evidence would be forthcoming.

"Where defense counsel in opening statement recognizes and

candidly asserts the inevitable, he is often serving his client's interests

best by bringing out the damaging information and thus lessening the

impact." People v. Wise, 134 Mich. App. 82, 98, 351 N.W.2d 255, 263

(1984). Thus, because it appeared inevitable that the State would

present evidence of Capote's gang affiliation and the gang's "plans" for

24 CR-20-0537

Freeman, "an attorney exercising professional skill and judgment could

reasonably have concluded that the best strategy was to be candid from

the start about the evidence that the jury would likely hear." Rudnitskyy

v. State, 303 Or. App. 549, 558, 464 P.3d 471, 478 (2020). See State v.

Taylor (No. 12AP-870, Aug. 27, 2013) (Ohio Ct. App. 2013) (unpublished

decision) ("This court will not second-guess what appears to have been a

tactical decision made by defense counsel to foreclose the sting of

appellant's alleged gang affiliation by mentioning it in opening statement

… when defense counsel reasonably could anticipate its admission at

trial.") 4; Torres v. Lopez, (No. CV-10-3537, Dec. 18, 2014) (C.D. Cal. 2014)

(not reported in Federal Supplement) (concluding that counsel had made

"the sort of strategic decision to which reviewing courts must accord

deference" by choosing to acknowledge during the opening statement that

the defendant had once been a member of a gang because "[c]ounsel was

merely acknowledging what would become, given the evidence, plainly

obvious during trial").

44InOhio, unpublished decisions of the Court of Appeals issued after May 1, 2002, may be cited as legal authority. See Rule 3.4, Ohio Supreme Court Rules for the Reporting of Opinions.

25 CR-20-0537

As the United States Supreme Court has explained, a defendant

has failed to establish deficient performance by his counsel when "the

challenged action 'might be considered sound trial strategy.' " Strickland

v. Washington, 466 U.S. 668, 689 (quoting Michel v. Louisiana, 350 U.S.

91, 101 (1955)). See also State v. Ray, 469 P.3d 871, 876-77 (Utah 2020)

("If it appears counsel's actions could have been intended to further a

reasonable strategy, a defendant has necessarily failed to show

unreasonable performance." (citing Strickland, supra)). Given the

circumstances of this case, counsel's decision during the opening

statement to acknowledge Capote's gang affiliation and the gang's

"plans" for Freeman could be considered sound trial strategy. Thus,

Capote failed to establish that his counsel performed deficiently during

the opening statement, and summary dismissal of this claim was

therefore proper. Shaw, 148 So. 3d at 764-65. See also Miller v. State, 1

So. 3d 1073, 1078 (Ala. Crim. App. 2007) (holding that summary

dismissal was proper because the facts the petitioner pleaded, even if

true, did not establish that his counsel had performed deficiently); and

Stallworth v. State, 171 So. 3d 53, 79 (Ala. Crim. App. 2013) (" 'A trial

court may summarily dismiss a post-conviction petition [on a claim of

26 CR-20-0537

ineffective assistance of counsel] when it is clear upon the face of the

petition itself … that there are no facts upon which the petitioner could

prevail.' " (quoting Fairley v. State, 812 So. 2d 259, 262 (Miss. Ct. App.

2002))).

b. Defense Counsel's Cross-Examination

We next address Capote's allegation that his counsel rendered

ineffective assistance by "eliciting detailed testimony about the activities

of the Almighty Imperial Gangsters" while cross-examining three State's

witnesses. Specifically, Capote alleged that his counsel elicited

testimony "that the gang met every Thursday night"; "that dues were $7

every week"; "that the gang sold marijuana to support itself"; that the

gang's "original plan was to kidnap [Freeman], torture him, cut his

fingers off, and kill him"; "that two gang members [(other than Capote)]

had stolen the [assault] rifle" used in Freeman's murder; "that the gang

was trying to be like the Crips and Bloods"; that the gang's leader had

come from a gang in Chicago; "that one person had left the gang" and the

gang was "still looking for him"; that the gang's "sign" is a diamond; that

Capote provided younger gang members with marijuana to sell; that

Capote and another gang member had stolen the white truck that had

27 CR-20-0537

carried the two shooters to the scene of Freeman's murder; and that, a

few days before Freeman's murder, two gang members (other than

Capote) had been "ripped off" in a drug deal, which had resulted in "a

gunfight." (C. 13-14.) As noted, Capote alleged that, by eliciting such

testimony, his counsel "gave the jury reason to believe that [he] was an

incorrigible criminal who was guilty of murder and should not live among

them." 5

Initially, we note that " ' "[t]he method and scope of cross-

examination 'is a paradigm of the type of tactical decision that

[ordinarily] cannot be challenged as evidence of ineffective assistance of

counsel.' " ' " Stanley, 335 So. 3d at 37 (quoting Davis v. State, 44 So. 3d

1118, 1135 (Ala. Crim. App. 2009), quoting in turn State ex rel. Daniel v.

Legursky, 195 W. Va. 314, 328, 465 S.E.2d 416, 430 (1995), quoting in

turn Hutchins v. Garrison, 724 F.2d 1425, 1436 (4th Cir. 1983)). See also

5Some of the testimony Capote cited reflected negatively on him specifically – namely, that he provided younger gang members with marijuana to sell and that he had been involved in the theft of the white truck. However, Capote's argument was not that his counsel rendered ineffective assistance by eliciting testimony of his collateral acts. See Rule 404(b), Ala. R. Evid. Instead, Capote's argument was that his counsel rendered ineffective assistance by eliciting testimony of the "activities" of the Almighty Imperial Gangsters as a whole. 28 CR-20-0537

A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007) (" '[D]ecisions

regarding whether and how to conduct cross-examinations and what

evidence to introduce are matters of trial strategy and tactics.' " (quoting

Rose v. State, 258 Ga. App. 232, 236, 573 S.E.2d 465, 469 (2002))).

Regardless, even if we assume that the scope of counsel's cross-

examination was objectively unreasonable in this case, which we do not,

Capote cannot demonstrate that he was prejudiced by the cross-

examination because "there is [not] a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different." Strickland, 466 U.S. at 694. See Bryant v. State, 181 So.

3d 1087, 1165 n.13 (Ala. Crim. App. 2011) (opinion on return to remand)

("Because we conclude that Bryant was not prejudiced, we need not

specifically address whether counsel's performance was deficient.").

First, we reiterate that Capote's gang affiliation permeated the

trial, and some of the testimony regarding the gang's "activities" was

wholly innocuous, such as its meeting schedule, its weekly dues, the fact

that its "sign" is a diamond, and the fact that its leader had come from

Chicago. There is little to no chance, and certainly not a reasonable

probability, that this testimony influenced the jury's verdict. It is true

29 CR-20-0537

that the rest of the testimony Capote cited tended to indicate that the

gang was generally involved in violence, illicit drugs, and theft, but that

fact likely would have come as no surprise to the jury. As the Louisiana

Supreme Court has observed, "it is common knowledge that gang

members engage in drug-related and violent crimes," and, thus, evidence

to that effect would "hardly be … surprising to the jury." State v. Cooks,

720 So. 2d 637, 650 (La. 1998). See also United States v. Wright, (No. 02-

00116-03, Aug. 29, 2006) (W.D. Mo. 2006) (not reported in Federal

Supplement) (noting that the fact that "drug deals or violence are

symptomatic of gangs … falls within the realm of [a juror's] common

sense conclusions"). Moreover, the State presented evidence indicating

that the gang was prone to violence and involved with illicit drugs.

Furthermore, there was substantial evidence of Capote's guilt, and

that evidence was not circumstantial. Freeman's murder was captured

on a surveillance-camera video, and two other gang members identified

Capote as one of the two shooters on the video. Granted, as suspects

themselves, those gang members had incentive to pin the murder on

Capote, but the State also introduced a handwritten letter Capote had

30 CR-20-0537

sent to the gang's leader while they were incarcerated together, and

Capote admitted in that letter that he had killed Freeman. (R. 1219.)

In short, Capote's gang affiliation was well established by the

State's evidence; the State's evidence indicated that the gang was prone

to violence and involved with illicit drugs; the jurors' common sense

would have told them that the gang was likely involved in criminal

conduct; and there was substantial evidence of Capote's guilt, including

his confession to another gang member. Given those facts, there is not a

reasonable probability that the jury would have reached a different

verdict in the absence of testimony regarding some of the gang's specific

"activities." Thus, even if it was objectively unreasonable for Capote's

counsel to elicit such testimony – and we do not suggest that it was –

Capote cannot establish that he was prejudiced by the allegedly deficient

performance. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim.

App. 2011) (holding that, given the "ample evidence" of the defendant's

guilt, it was "unlikely … that the jury would have reached a different

conclusion in the absence of the gang-related evidence"); and Henderson

v. Cockrell, 333 F.3d 592, 603 (5th Cir. 2003) (holding that there was "not

a reasonable probability that the evidence of [the defendant's] gang

31 CR-20-0537

affiliation affected the outcome of the … trial," especially given "the

extremely strong evidence of his guilt, including his confession to his

cellmate"). Accordingly, summary dismissal of this claim was proper.

See Wimbley v. State, [Ms. CR-20-0201, Dec. 16, 2022] ___ So. 3d ___, ___

(Ala. Crim. App. 2022) ("Because Wimbley cannot establish prejudice

under Strickland, the circuit court properly dismissed this claim.").

2.

Capote's second ineffective-assistance-of-counsel claim alleged that

his counsel "conducted a cursory voir dire that fell far below the standard

expected from a competent lawyer in a capital case." (C. 15.) In support

of that claim, Capote alleged only the following facts: "The entire voir dire

covers less than 60 pages of the trial transcript and is anything but

probing. The questions are general, and the answers reveal little." (Id.

(citations to record omitted).)

In Stanley, supra, the appellant raised a similar claim, arguing that

his counsel "conducted only 'a cursory voir dire examination covering a

mere 20 transcript pages.' " Stanley, 335 So. 3d at 47 (citation to record

omitted). This Court held that the appellant's claim was insufficiently

pleaded, however, because he had "failed to allege in his petition what

32 CR-20-0537

specific questions he believed counsel should have asked or what

responses he thought he would have received to such questions." Id. at

48. The Court reached the same conclusion in Bryant, supra, holding

that the appellant's claim was insufficiently pleaded because he had

"failed to specifically identify what additional questions he believe[d]

counsel should have asked the venire." Bryant, 181 So. 3d at 1107.

Like the appellants in Stanley and Bryant, Capote did not identify

in his petition the specific questions he believed his counsel should have

asked during voir dire. Thus, Capote failed to plead this claim with the

specificity required by Rule 32.3 and Rule 32.6(b), and summary

dismissal of the claim was therefore proper. Shaw, 148 So. 3d at 764.

3.

Capote's third ineffective-assistance-of-counsel claim alleged that

his counsel "failed to ensure that the instructions provided to the jury

accurately stated the law." (C. 15.) Specifically, Capote alleged that his

counsel should have objected to the trial court's capital-murder

instruction because, he said, "the jury was not properly instructed that

33 CR-20-0537

the critical element of capital murder is that the defendant have a specific

intent to kill."6 (Id.)

On direct appeal, Capote raised the underlying claim upon which

this ineffective-assistance-of-counsel claim is based, i.e., that the trial

court "failed to instruct the jury that capital murder requires a real and

specific intent to kill." Capote, 323 So. 3d at 129. Capote also argued

that this alleged error was compounded by the trial court's accomplice-

liability instruction, which, he argued, allowed the jury to convict him of

capital murder under the felony-murder standard. Because Capote did

not object to the jury instructions, this Court reviewed his claim for plain

error and found none because, we reasoned, there was "no reasonable

likelihood that the jurors applied the challenged instructions in an

improper manner." Id. at 131.

6Capote also alleged that his counsel should have objected to the trial court's reasonable-doubt instruction, which, he said, "deviated from the Alabama Pattern Jury Instruction and did so in ways that eased the prosecution's burden." (C. 15.) We do not consider that claim, however, because Capote has not reasserted it on appeal, and it is thus deemed abandoned. See Brownfield v. State, 266 So. 3d 777, 795 n.8 (Ala. Crim. App. 2017) ("Those claims of ineffective assistance of trial counsel raised in Brownfield's petition but not pursued on appeal are deemed abandoned and will not be considered by this Court."). 34 CR-20-0537

In Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005), the Alabama

Supreme Court explained that "a determination on direct appeal that

there has been no plain error does not automatically foreclose a

determination of the existence of the prejudice required under Strickland

to sustain a claim of ineffective assistance of counsel." "However, Ex

parte Taylor applies only to the prejudice prong of Strickland, not to the

deficient-performance prong." Woodward v. State, 276 So. 3d 713, 769

(Ala. Crim. App. 2018). Thus, where "this Court's holding on direct

appeal establishes that counsel's performance was not deficient, Ex parte

Taylor is inapplicable." Id.

In holding on direct appeal that there was no plain error in the jury

instructions, this Court held that the instructions, taken as a whole, had

"properly apprised the jury of the elements of capital murder." Capote,

323 So. 3d at 131. In other words, this Court has already held that the

trial court's capital-murder instruction accurately informed the jury of

the specific intent required for a capital-murder conviction. That holding,

by extension, establishes that there is no merit to the objection that

Capote's counsel allegedly should have raised, and it is well settled that

counsel cannot be deemed ineffective for failing to raise a meritless

35 CR-20-0537

objection. Van Pelt v. State, 202 So. 3d 707, 732 (Ala. Crim. App. 2015).

In short, then, this Court's holding on direct appeal establishes that

Capote's counsel did not perform deficiently by not objecting to the trial

court's capital-murder instruction. Thus, summary dismissal of this

claim was proper. See Woodward, 276 So. 3d at 769 (holding that

summary dismissal of an ineffective-assistance-of-counsel claim was

proper because "this Court's holding on direct appeal establishe[d] that

counsel's performance was not deficient").

4.

Capote's fourth ineffective-assistance-of-counsel claim alleged that

his counsel failed to object to the admission of autopsy photographs,

particularly photographs that showed Freeman's "lungs after they were

removed from his body" and "his rib cage and chest cavity with all of his

organs taken out." (C. 15.) On direct appeal, however, this Court held

that the autopsy photographs were admissible, even though they were

"unpleasant to view," because they tended to "show the extent of the

wounds to Freeman's body." Capote, 323 So. 3d at 126. Thus, this Court

has already determined that there is no merit to the objection that

Capote's counsel allegedly should have raised, and, as we have just noted,

36 CR-20-0537

counsel cannot be deemed ineffective for failing to raise a meritless

objection. Van Pelt, 202 So. 3d at 732. Accordingly, summary dismissal

of this claim was proper. See Carruth v. State, 165 So. 3d 627, 641-42

(Ala. Crim. App. 2014) (holding that summary dismissal was proper

because the objection that counsel allegedly should have raised had no

merit, given that the prosecutor's allegedly objectionable comments were

permissible).

B. Penalty-Phase Claims

Capote's fifth ineffective-assistance-of-counsel claim alleged that

his counsel "failed to stop [Jay Currin, Capote's half-brother,] when

[Currin] went off the rails" while testifying about their mother during the

penalty phase. (C. 17.) Specifically, Capote alleged that his counsel

allowed Currin to provide more "profanity-laced testimony" than "has

[ever] before been uttered in an Alabama court." (C. 16.) In support of

that claim, Capote alleged the following facts:

"Currin testified that his mother 'wanted to fucking take it out on [Currin and Capote]; that she 'wasn't a fucking parent'; that 'she was a piece of shit'; that one day she 'ditched [Currin's] ass at a Waffle House with a fucking paper bag . . . and fucking took off'; that she 'was just a lying ass motherfucker that didn't want to own up to her own

37 CR-20-0537

responsibilities'; and that she 'ma[de] [Currin] kneel in rice and fucking chok[ed] him against the wall … beating the fuck out of [him] whenever she could get her hands on [him].' 'Who the fuck needs that kind of shit as a kid,' he asked the jury."

(Id. (citations to record omitted).) According to Capote, Currin's

consistent profanity "could not have sat well with [the jury]" and "left the

jury thinking that even the 'good brother' (Currin) was out of control."

(C. 17.)

We know of no authority, and Capote has cited no authority, that

imposed a duty on his counsel to control Currin's profanity. In fact, we

note that it is generally the trial court – not counsel – that has the duty

to control a witness's behavior. See Grayson v. State, 824 So. 2d 804, 841

(Ala. Crim. App. 1999) (noting the trial court's " 'inherent authority … to

control the conduct of the proceedings before it, in order to ensure that

the proper decorum and appropriate atmosphere are established' "

(quoting Hicks-Bey v. United States, 649 A.2d 569, 575 (D.C. App.

1994))); and Lawson v. State, 274 Ind. 419, 431, 412 N.E.2d 759, 768

(1980) (noting "the trial court's duty to manage and control the

proceedings," which "obviously extends to the potentially disruptive

behavior of … witnesses").

38 CR-20-0537

Regardless, it appears that Capote's counsel made a strategic

decision to allow Currin to use profanity throughout his testimony.

During closing arguments, counsel argued:

"You heard from Jay Currin, and that's some of the most compelling, truthful, heartfelt, gut-wrenching – and I know it was vile. I know it was profane. I've never heard – in 36 years, I've never heard anybody talk like that in the courtroom, but he was truthful and he was honest. And that's the way he feels about [his mother] for the circumstances that he was put in. ….

"… [Currin is] carrying a burden in his heart and in his soul and a hatred for his mother that he will never get over, not without years of serious counseling. You saw it, you felt it. It was true. It was raw. It was emotional. And it was the truth."

(R. 1994-95.)

As evidenced by that argument, it appears that counsel believed

Currin's profanity, though "vile," was an effective way to demonstrate the

hatred Currin carries for his and Capote's mother and thus tended to

emphasize just how traumatic their childhood was. As one court has

observed, when a defendant is facing the possibility of a death sentence,

his counsel's attempt to "try talking the jury into a life sentence through

the use of emotional testimony" is a reasonable trial strategy. Foster v.

Strickland, 517 F. Supp. 597, 605 (N.D. Fla. 1981). Although another

39 CR-20-0537

attorney might have determined that Currin's profanity would do more

harm than good for Capote, it was not objectively unreasonable for

Capote's counsel to reach a different conclusion. See Stanley, 335 So. 3d

at 23 (noting that "[t]here are countless ways to provide effective

assistance in any given case" and that "[e]ven the best criminal defense

attorneys would not defend a particular client in the same way" (citation

omitted)); and Duncan v. State, 461 So. 2d 906, 909 (Ala. Crim. App.

1984) (affirming the circuit court's finding that counsel's performance

was not deficient, even though "another attorney might [have made]

different choices or [chosen] different tactics"). Moreover, even if Currin's

profanity did not "s[i]t well" with the jury, there is not a substantial

likelihood that the jury's sentencing verdict would have been different if

only the jury had not been exposed to his profanity. See Stanley, 335 So.

3d at 24 (noting that, to establish prejudice from counsel's deficient

performance, there must be "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have

been different" and that "[t]he likelihood of a different result must be

substantial, not just conceivable" (citations omitted)).

40 CR-20-0537

Based on the foregoing, the facts in Capote's petition, even if true,

do not establish that his counsel performed deficiently during Currin's

testimony, and, even if counsel's performance was deficient, Capote

suffered no prejudice. Thus, summary dismissal of this claim was proper.

See Miller, 1 So. 3d at 1078 (holding that summary dismissal was proper

because the facts the petitioner pleaded, even if true, did not establish

that his counsel had performed deficiently or that he had been prejudiced

by the allegedly deficient performance); and Stallworth, 171 So. 3d at 79

("A trial court may summarily dismiss a post-conviction petition [on a

claim of ineffective assistance of counsel] when it is clear upon the face of

the petition itself … that there are no facts upon which the petitioner

could prevail." (citation omitted)).

Capote's sixth ineffective-assistance-of-counsel claim alleged that

his counsel failed to call Jenny Manuel to testify during the penalty

phase. When Capote was 19 years old, he lived with Manuel and her

family for several months because he was otherwise homeless. According

to Capote, Manuel would have testified that Capote "was essentially a

nanny" for her two young children, that he "cared for [the children's]

41 CR-20-0537

needs," and that the children "came to love him." (C. 17.) Capote alleged

that those facts "would have made a powerful impression" on the jury by

"provid[ing] proof of [his] nurturing side" (id.), and he alleged that,

without Manuel's testimony, the State "succeeded in portraying him as a

remorseless murderer who had a complete lack of respect for the lives of

others." (C. 18.)

Initially, we note that " '[a] trial counsel's choice of whether to call

witnesses is generally accorded a presumption of deliberate trial strategy

and cannot be subject to second-guessing in a claim of ineffective

assistance of counsel.' " Stallworth, 171 So. 3d at 73 (quoting Saylor v.

Commonwealth, 357 S.W.3d 567, 571 (Ky. Ct. App. 2012)). We also note

that Manuel's testimony would have been cumulative of the testimony

provided by Dr. Marianne Rosenzweig, a forensic psychologist who

testified for the defense. Specifically, Dr. Rosenzweig testified that

Capote was "like a nanny" for Manuel's family in that he "would cook

dinners for [them], he cleaned the house, he did laundry, [and] he took

care of her kids"; that he "became like a part of the family"; and that

Manuel's children viewed him as an uncle. (R. 1710.) As this Court has

repeatedly stated: " '[F]ailing to introduce additional mitigation evidence

42 CR-20-0537

that is only cumulative of that already presented does not amount to

ineffective assistance.' " Walker v. State, 194 So. 3d 253, 288 (Ala. Crim.

App. 2015) (quoting Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir.

2011)). Thus, because Manuel's testimony would have been cumulative

of Dr. Rosenzweig's testimony, summary dismissal of this claim was

proper. See Peraita v. State, [Ms. CR-17-1025, Aug. 6, 2021] ___ So. 3d

___, ___ (Ala. Crim. App. 2021) (holding that summary dismissal was

proper because "the proposed testimony [that counsel allegedly should

have presented] was cumulative to other evidence presented at trial").

We acknowledge Capote's allegation that his counsel should have

called Manuel to testify, despite the cumulative nature of her testimony,

because, according to Capote, "[i]t is well established that lay witnesses

– family and others who know the defendant well – are more effective as

mitigation witnesses than 'experts.' " (C. 18.) However, decisions

regarding " '[w]hich witnesses to call … are clearly trial strategy,' " Clark

v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015) (quoting Ortiz v.

State, 866 S.W.2d 312, 315 (Tex. Ct. App. 1993)), and, despite his

contention that he was asserting a well established principle, Capote

cited no authority providing that a layperson is a more effective

43 CR-20-0537

mitigation witness than an expert. Instead, Capote cited the American

Bar Association Guidelines – which are not authoritative, Ray v. State,

80 So. 3d 965, 982 (Ala. Crim. App. 2011) – and, moreover, the specific

guideline he cited does not suggest that a layperson is a more effective

mitigation witness than an expert. (C. 18.) Thus, we are unpersuaded

by Capote's argument that his counsel performed deficiently in choosing

to rely on an expert witness instead of a lay witness who would have

presented the same mitigation testimony.

Capote's seventh ineffective-assistance-of-counsel claim alleged

that his counsel failed to ensure that his stepfather, Conrad Mathias,

testified during the penalty phase. Capote noted in his petition that his

counsel had arranged for Mathias to testify but that Mathias had

ultimately "backed out" because "[s]peaking positively about Capote with

Freeman's family in the courtroom made him uncomfortable; he felt for

their loss." (C. 18-19.) According to Capote, his counsel should have

"press[ed] upon [Mathias] the importance of appearing" but, instead, "did

nothing to overcome [his] reluctance." (C. 19.) As to how Mathias's

testimony could have benefited him, Capote alleged:

44 CR-20-0537

"Had Mathias testified, he would have helped humanize Capote for the jury. He saw Capote as a 'normal kid,' rambunctious and occasionally in trouble in school, but not a delinquent. Moreover, he would have discussed Capote's ADHD and how Ritalin seemed to help him slow down and focus. Most importantly, he would have offered firsthand testimony about Capote's mother and her gross failings as a parent. Their marriage dissolved, he would have testified, when Capote's mother put using drugs before [her] children and left drugs out openly in the dwelling."

(C. 19.)

However, Capote conceded in his petition that, "[i]f a witness

declines to testify, a lawyer cannot generally be faulted" (C. 19), and the

United States Supreme Court has held that competent representation

"does not require an attorney to browbeat a reluctant witness into

testifying." Knowles v. Mirzayance, 556 U.S. 111, 125 (2009). Indeed, a

reluctant witness can actually serve as a liability to the defendant,

especially when the witness has expressed sympathy for the victim's

family, as Mathias did. Thus, the decision not to pressure a reluctant

witness into testifying is an objectively reasonable trial strategy. See

Guertin v. State, 243 Ga. App. 322, 323, 533 S.E.2d 159, 161 (2000)

(finding no deficiency in counsel's decision not to call a witness to testify

because counsel had determined that, "as a reluctant witness, any

beneficial testimony that [she] could have provided might have been

45 CR-20-0537

offset with testimony that could hurt [the defendant's] case"); and Parker

v. Bowersox, 94 F.3d 458, 461 (8th Cir. 1996) (holding that counsel's

decision not to call an "extremely reluctant" witness "did not fall outside

the wide range of professionally reasonable performance").

Moreover, according to Capote, Mathias would have testified that

Capote was a "normal kid" who was "not a delinquent," that he had been

diagnosed with attention-deficit/hyperactivity disorder ("ADHD"), and

that Capote's mother had "put using drugs before [her] children and left

drugs out openly in the dwelling." However, Dr. Rosenzweig testified

that the people she interviewed, which included Mathias, had told her

that Capote was a "pleasant child" who "showed respect to adults and …

had no problems … minding them" (R. 1684), that he had been diagnosed

with ADHD, and that his mother "would openly smoke marijuana in front

of the kids," "used [cocaine] in front of the kids," and "was usually high

when she was at home." (R. 1677-78.) Thus, Mathias's testimony would

have been cumulative of Dr. Rosenzweig's testimony, and, as we have

already noted, "[f]ailing to introduce additional mitigation evidence that

is only cumulative of that already presented does not amount to

ineffective assistance." Walker, 194 So. 3d at 288 (citation omitted).

46 CR-20-0537

Based on the foregoing, Capote failed to establish that his counsel

performed deficiently by not coaxing Mathias into testifying. Thus,

summary dismissal of this claim was proper. See Miller, 1 So. 3d at 1078

(holding that summary dismissal was proper because the facts the

petitioner pleaded, even if true, did not establish that his counsel had

performed deficiently); and Peraita, ___ So. 3d at ___ (holding that

summary dismissal was proper because "the proposed testimony [that

counsel allegedly should have presented] was cumulative to other

evidence presented at trial").

Capote's eighth ineffective-assistance-of-counsel claim alleged that

his counsel failed to call Jeffrey Walker to testify during the penalty

phase. According to Capote, Walker is a criminal-justice professor who,

if called to testify,

"would have explained that young people who feel marginalized or rejected – terms that apply squarely to Capote – turn to gangs for support; that a gang fosters a sense of belonging and can be a substitute family for a needy youth; and that gangs provide a way for young persons to gain respect and self-esteem, qualities that are often sorely missing from their lives."

47 CR-20-0537

(C. 20.) As to the prejudice he suffered in the absence of Walker's

testimony, Capote alleged that the evidence of his gang affiliation,

"presented without context, caused the jury to take a dim view of [his]

character." (Id.)

We reiterate here that "[a] trial counsel's choice of whether to call

witnesses is generally accorded a presumption of deliberate trial strategy

and cannot be subject to second-guessing in a claim of ineffective

assistance of counsel." Stallworth, 171 So. 3d at 73 (citation omitted).

Furthermore, Dr. Rosenzweig provided testimony regarding Capote's

reasons for joining the Almighty Imperial Gangsters. Specifically, after

testifying to the harrowing events Capote experienced in his mother's

house as a young child, Dr. Rosenzweig testified that Capote's mother

"ended up kicking [him] out … when he was 14" years old and that he

subsequently experienced intermittent periods of homelessness. (R.

1704.) Dr. Rosenzweig then testified as follows:

"Q. Now, … between 14 and, say, 19, at some point [Capote] became involved in gang activity; is that correct?

"A. That's true.

"Q. First joined the Latin Kings?

"A. That's correct.

48 CR-20-0537

"Q. Tell us about that.

"A. [Capote] was about 16 when he was – what they call it, he was jumped into the Latin Kings. That meant that they basically beat him up for a period of time. That's the right of initiation. [Capote] told me that he had been homeless at this time, and the Latin Kings had kind of become like his family. That they kind of looked out for him, and they took care of him. And he didn't choose to go into the Latin Kings, but he was pretty sure that he was going to get initiated into the gang. And, in fact, that is what happened when he was 16.

"Q. And at some point he got away from them, is that right?

"A. He did. When he was 19, he elected to go into another gang called the Imperial Gangsters. The reason he did that is that he said after he was initiated into the Latin Kings, they basically forgot about him. They stopped treating him like a family member and just kind of let him do for himself. And basically, kind of had him out there kind of making money for them. And – but he knew some younger kids from his neighborhood that he kind of hung around with, and they were the Imperial Gangsters. They – so he changed his gang affiliation because the Imperial Gangsters really did treat him like family and kind of look out for him.

"But when he changed his affiliation, gangs of Chicago are sort of not the same as they are in Alabama. This is – they are the real thing. And a gang – when you join a gang, it's … for a lifetime. You can't elect to get out of a gang. And [Capote] said, but he knew that when he left the Latin Kings, he was marked to be killed by them. And that he made the decision though at 19 to take that risk because he said he was homeless. And living as a homeless person on the streets of Chicago, he

49 CR-20-0537

thought he would survive longer by joining the Imperial Gangsters and having somebody to kind of look after him basically like his own family than he would if he stayed just as a homeless person on the street."

(R. 1710-13.)

Thus, Dr. Rosenzweig's testimony indicated that Capote had turned

to gangs for the support and sense of family that he had not previously

experienced, which, according to Capote, would have been the purpose of

Walker's testimony. In other words, Walker's testimony would have been

cumulative of Dr. Rosenzweig's testimony, and, once again, "[f]ailing to

introduce additional mitigation evidence that is only cumulative of that

already presented does not amount to ineffective assistance." Walker,

194 So. 3d at 288 (citation omitted). Accordingly, summary dismissal of

this claim was proper. See Peraita, ___ So. 3d at ___ (holding that

summary dismissal was proper because "the proposed testimony [that

counsel allegedly should have presented] was cumulative to other

We note that Capote also alleged that

"[i]f called as a witness, Walker would have addressed these issues: Why someone joins a gang? What is expected of gang members? What is the significance of tattoos for someone in a gang or in prison? (Capote has noticeable facial tattoos that

50 CR-20-0537

might have alarmed the jurors.) And can someone change for the better while in prison?"

(C. 20.) However, this part of Capote's claim was nothing more than a

list of issues that Walker allegedly would have addressed without any

indication as to what Walker's testimony would have been. As this Court

has explained, to properly plead a claim that counsel rendered ineffective

assistance by failing to hire an expert witness, the petitioner must " 'set

out the testimony that the named expert would have given.' " Wimbley,

___ So. 3d at ___ (quoting Brooks v. State, 340 So. 3d 410, 437 (Ala. Crim.

App. 2020)). Merely setting forth a list of questions that could have been

presented to an expert witness, without any indication as to how the

witness would have testified in response to the questions, is not sufficient

to satisfy this pleading requirement.

5.

Capote's ninth ineffective-assistance-of-counsel claim alleged that

Dr. Rosenzweig "was not properly prepared for cross-examination, and,

as a result, her testimony did more to harm [him] than to help him." (C.

21.) In support of that claim, Capote alleged the following facts:

"On cross-examination, the prosecutor got Dr. Rosenzweig to admit that Capote was a 'hellion' in kindergarten, where he kicked a teacher and attacked other

51 CR-20-0537

students; that 'that [kind of] behavior has continued almost all of his life'; 'that he has a history of expressly violent behavior'; 'that if somebody mean mugs [Capote] . . . he [is] going to strike first'; that Capote was diagnosed with 'antisocial personality disorder'; and that the letter he wrote to [another gang member] in jail showed no remorse and 'fit the definition of a person with an anti-social personality disorder.' In almost all of these instances, the prosecutor asked a leading question – e.g., Capote was said to have a 'history of expressly violent behavior, right?' – and Dr. Rosenzweig answered 'Yes' or 'Correct' without explanation or push back."

(Id. (citations to record omitted).) According to Capote, "the prosecutor

used the testimony elicited from Dr. Rosenzweig on cross-examination to

paint a picture of [him] as person who could not control his anger." (Id.)

However, nowhere in his petition did Capote indicate what he

believed his counsel should have done to better prepare Dr. Rosenzweig

for cross-examination or how any further preparation would have

impacted her testimony. In his brief to this Court, Capote argues that

his counsel "could have anticipated what were obvious cross-examination

questions and worked with Dr. Rosenzweig to give less damaging

answers" (Capote's brief, p. 47), but the facts supporting an ineffective-

assistance-of-counsel claim must be pleaded in the petition itself. See

Bearden v. State, 825 So. 2d 868, 872 (Ala. Crim. App. 2001) ("Although

Bearden attempts to include more specific facts regarding his claims of

52 CR-20-0537

ineffective assistance of counsel in his brief to this Court, those

allegations are not properly before this Court for review because Bearden

did not include them in his original petition before the circuit court.");

and Bryant, 181 So. 3d at 1108 ("We note that Bryant alleges additional,

and more specific, facts in his brief on appeal regarding this claim.

However, these factual allegations were not included in his petition or

amended petition; therefore, they are not properly before this Court for

review and will not be considered."). Thus, Capote failed to plead this

claim with the specificity required by Rule 32.3 and Rule 32.6(b), and

summary dismissal of the claim was therefore proper. Shaw, 148 So. 3d

at 764. See also Donald v. State, 312 Ga. App. 222, 229-30, 718 S.E.2d

81, 87-88 (2011) (affirming the denial of a claim that counsel had failed

to adequately prepare the defendant for cross-examination because the

defendant had made no "proffer showing how further preparation would

have changed [his] testimony" (citation omitted)).

6.

Capote's tenth ineffective-assistance-of-counsel claim alleged that

his counsel "fail[ed] to adequately investigate [his] mental-health issues,"

which, according to Capote, include "anxiety and depression," "PTSD-

53 CR-20-0537

related nightmares," and "mood instability." (C. 22-23.) Although Dr.

Rosenzweig provided testimony to that effect (R. 1721), Capote alleged

that his counsel should have also "engaged a psychiatrist to evaluate

[him]" and that, had counsel done so, "the psychiatrist could have

addressed [his] mental-health issues with medication and treatment."

(C. 22.)

This claim was insufficiently pleaded, however, because Capote did

not identify any psychiatrist his counsel should have "engaged." See

Peraita, ___ So. 3d at ___ (holding that the petitioner's claim that his

counsel "should have hired some other expert witness to assess his

mental health" was insufficiently pleaded because he did not identify the

expert "by name"); and Wimbley, ___ So. 3d at ___ (holding that the

petitioner's claim was insufficiently pleaded because he "did not allege

the name of any mental-health professional his counsel should have

talked to"). Thus, because Capote failed to plead this claim with the

specificity required by Rule 32.3 and Rule 32.6(b), summary dismissal of

the claim was proper.7 Shaw, 148 So. 3d at 764.

7Capote raised an eleventh ineffective-assistance-of-counsel claim in his petition, alleging that his counsel "fail[ed] to challenge the use of [his] prior felony as an aggravating circumstance." (C. 23.) We do not 54 CR-20-0537

Conclusion

Capote has not demonstrated that he is entitled to relief from the

circuit court's summary dismissal of his Rule 32 petition. Accordingly,

the judgment of the circuit court is affirmed.

AFFIRMED.

Windom, P.J., and Kellum and Minor, JJ., concur. Cole, J., concurs

in the result.

consider that claim, however, because Capote has not reasserted it on appeal, and it is thus deemed abandoned. Brownfield, 266 So. 3d at 795 n.8. 55