Wayne Holleman Travis v. State of Alabama

• Court: Court of Criminal Appeals of Alabama
• Decided: March 24, 2023
• Docket: CR-18-0973
• Status: Published

Opinion

Rel: March 24, 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-18-0973 _________________________

Wayne Holleman Travis

v.

State of Alabama

Appeal from Conecuh Circuit Court (CC-92-4.60)

COLE, Judge.

Wayne Holleman Travis, an inmate on Alabama's death row,

appeals the circuit court's denial of his Rule 32, Ala. R. Crim. P., petition

for postconviction relief. CR-18-0973

Facts and Procedural History

The facts, as summarized by the Alabama Supreme Court on direct

appeal, are as follows:

"On December 12, 1991, Travis and a friend, Steven Wayne Hall, traveled by bus to Uriah, Alabama. Paula Jean Shiver, a friend of Hall's, met them and drove them to her parents' home. Travis and Hall stayed with Shiver until December 14, when she drove them to the home of Travis's parents. Travis and Hall stayed there from 6:30 p.m. to approximately 7:05 p.m., and then left on foot. The home of the murder victim, 69-year-old widow Clarene Haskew, was approximately one mile away by road.

"Sometime shortly after 7:00 p.m., Travis and Hall arrived at the home of Jessie Wiggins, an elderly woman, and asked to use the telephone. They dialed several numbers and then left. Wiggins's home was approximately one mile from the victim's home.

"Later that evening, at approximately 10:30 p.m., Nellie Shad returned to her home and found that it had been burglarized; she described it as 'completely trashed.' A .38 caliber Rossi revolver and a .410-gauge shotgun had been taken. Shad drove to her sister's house, located several miles away, and telephoned the county sheriff's office. Shad's home was approximately one-fourth mile from the victim's home.

"On the morning of December 15, Wiggins went to the victim's home. She saw that the telephone wire leading into the house had been cut and that the porch and kitchen doors had been smashed in. Wiggins did not go in the home, but returned to her own home and telephoned the son of the victim.

2 CR-18-0973

"Later that morning, Conecuh County sheriff's deputies found Haskew's body in the kitchen of her home, which had been vandalized and burglarized. A pentagram had been spray-painted on a kitchen cabinet and the words 'thunder struck' had been spray-painted on the floor, beside her body. Missing were silverware, an address book, and Haskew's 1982 Ford LTD. A Ford pickup parked in a shed was found with its steering column open and wires pulled out. An autopsy determined that Haskew had suffered two gunshot wounds to the back of her head. She had also suffered a number of blunt- force injuries to her head and body, her throat and extremities were bruised, and her hyoid bone, situated at the base of the tongue, was broken.

"Earlier that same morning, Travis and Hall had returned to Shiver's home. Sometime between 4:00 and 5:00 a.m., they drove up in Haskew's 1982 Ford LTD and parked it behind a camper. Travis stayed in the car most of the day and told Shiver that the car belonged to his sister-in-law. Travis went into the Shiver home around 6:00 p.m. that evening. Sometime later, the Monroe County sheriff arrived at the residence. When Shiver called out that the sheriff was there, Travis and Hall fled out the back door and went into the woods. The sheriff's department used tracking dogs from a nearby prison to track Travis and Hall through the woods to a 'kudzu patch.' A gunfight ensued; in that gunfight, law enforcement officers wounded both Travis and Hall.

"When Travis was searched, officers found on his person the keys to the victim's automobile, five .38 caliber bullets, and his driver's license. When officers searched Haskew's automobile, they found in the automobile's glove compartment the .38 caliber Rossi revolver stolen from the Shad residence, and they found in the trunk the .410-gauge shotgun, the silverware, and the address book. Forensic tests later determined the .38 caliber revolver to be the weapon that had been used to shoot the victim."

3 CR-18-0973

Ex parte Travis, 776 So. 2d 874, 876-77 (Ala. 2000).

Travis was indicted for and convicted of capital murder for killing

Haskew during a first-degree burglary, a violation of § 13A-5-40(a)(4),

Ala. Code 1975. The jury -- by a vote of 11 to 1-- recommended that Travis

be sentenced to death. The trial court followed that recommendation.

On direct appeal, this Court affirmed Travis's capital-murder

conviction and death sentence. See Travis v. State, 776 So. 2d 819 (Ala.

Crim. App. 1997). The Alabama Supreme Court affirmed this Court's

judgment. See Ex parte Travis, supra. This Court issued a certificate of

judgment on July 18, 2000, making Travis's capital-murder conviction

and sentence final.1

Travis timely filed a Rule 32 petition challenging his capital-

murder conviction and death sentence on January 3, 2002. 2 (C. 12-82.)

1The Supreme Court of the United States denied Travis's petition for a writ of certiorari on January 8, 2001. See Travis v. Alabama, 531 U.S. 1081 (2001).

2"Rule 32.2(c), Ala. R. Crim. P., was amended effective August 1, 2002, to reduce the limitations period from two years to one year; however, for those cases that became final before August 1, 2001, the two- year limitations period applies. See Hyde v. State, 950 So. 2d 344 (Ala. Crim. App. 2006)." Bryant v. State, 29 So. 3d 928, 933 n.2 (Ala. Crim. App. 2009). Because Travis's conviction became final on July 18, 2000, the two-year limitations period applied to his Rule 32 petition. 4 CR-18-0973

Thereafter, Travis amended his Rule 32 petition five times. (C. 447-517;

759-838, 1088-170, 1605-93, and 2003-100.) The State answered and

moved to dismiss each petition. (C. 531-697, 839-1026, 1175-1378, 1701-

1919, and 2127-2280.)

In his fourth amended petition, Travis alleged, among other things,

that his trial counsel were ineffective during the guilt phase of his trial

because:

• They "failed to conduct an adequate investigation in preparation for [his] trial" because they "failed to interview or meet with [him] outside of court" (C. 1611), "failed to conduct an adequate independent investigation in preparation for the guilt phase of [his] trial" (C. 1613), failed "to procure necessary psychological and neuropsychological expert assistance" (C. 1615), and failed "to procure other necessary expert assistance" (C. 1618).

• They "failed to effectively challenge the State's presentation of trial evidence against [him]," including "fail[ing] to challenge the State's investigation and presentation of its case, fail[ing] to cross examine State witnesses adequately, and fail[ing] to object to the State's introduction of irrelevant and prejudicial evidence." (C. 1620-23.)

• They "failed to protect [his] rights at trial" because they failed "to object to the State's introduction of inadmissible and highly prejudicial evidence" and "did not object to the State's improper presentation of emotionally charged testimony from two of the victim's children." (C. 1623-25.) 5 CR-18-0973

• They "failed to present a coherent theory of defense to the jury in both the opening statement and closing argument." (C. 1625-26.)

Travis also alleged generally that his trial counsels' alleged errors during

the guilt phase of his trial "prejudiced [him] and violated his

constitutional rights." (C. 1626-27.)

Travis further alleged that his trial counsel were ineffective during

the penalty phase of his trial because:

• They "failed to conduct an adequate investigation in preparation for the sentencing phase of [his] trial" because, he says, his counsel "failed to interview or meet with [him] outside of court" (C. 1629), "failed to conduct an adequate independent investigation in preparation for the sentencing of Mr. Travis at trial" (C. 1630), and failed "to procure necessary psychological and neuropsychological expert assistance" (C. 1632).

• They "failed to make an effective presentation of evidence regarding Mr. Travis's early childhood in the custody of his mother." (C. 1634-37.)

• They "failed to investigate and present evidence of [his] life in foster care and his early years with his adoptive family." (C. 1637-40.)

• They "failed to investigate or present any evidence of [his] post-traumatic adolescence." (C. 1640-43.)

• They "failed to provide expert testimony about [his] psychological problems and the effects of his early childhood trauma." (C. 1643-46.) 6 CR-18-0973

• They "failed to make an effective presentation of documentary evidence." (C. 1646-48.)

• They "failed to present evidence regarding the relationship between [him] and Steven Hall." (C. 1648.)

• They "failed to protect [his] rights at the sentencing phase." (C. 1649-51.)

• Their "closing argument during sentencing was deficient." (C. 1651-52.)

As he did with his guilt-phase claims, Travis also alleged generally that

his trial counsels' alleged errors during the penalty phase of his trial were

"prejudicial to [him] and violated his constitutional rights." (C. 1652-53.)

On July 7, 2017, after conducting an in-court argument about the

claims raised in Travis's fourth amended petition, the circuit court

granted him an evidentiary hearing on his claims that his trial counsel

were ineffective during the guilt phase and penalty phase of his trial. 3

3The circuit court summarily dismissed many of Travis's claims and it also gave him an opportunity to amend some of his claims. But Travis does not challenge on appeal any of the claims that the circuit court summarily dismissed or any of the claims that the circuit court allowed him to amend. Because Travis has not raised those claims on appeal, this Court will not consider them. See Boyd v. State, 913 So. 2d 1113, 1145 (Ala. Crim. App. 2003) ("Claims presented in a Rule 32 petition but not pursued on appeal are deemed to be abandoned."). 7 CR-18-0973

(C. 1998-2002.) Before the evidentiary hearing, Travis filed a fifth

amended petition on August 7, 2017. (C. 2003-2100.)

Thereafter, the circuit court held an evidentiary hearing on Travis's

claims of ineffective assistance of counsel.4 (See Evid. Hrg. Oct. 2017; R.

1-474; Evid. Hrg. Nov. 2017, R. 1-297; and Evid. Hrg. Oct. 2018, R. 1-

608.) At the outset of the evidentiary hearing, the circuit court noted that

Travis had filed a fifth amended petition, but Travis's counsel explained

that there were no new issues raised in his fifth amended petition;

instead, they "went through and supplemented [their] pleadings to the

ineffective assistance of counsel claims per discussion with [the assistant

attorney general] during the July hearing," and they "supplemented a

few pleadings to a few other claims." (Evid. Hrg. Oct. 2017, R. 8-9.) The

circuit court explained that, in its order, it would address Travis's claims

4Travis's evidentiary hearing was held on two separate weeks nearly a year apart. The first part of his evidentiary hearing was held from October 30, 2017, through November 1, 2017, and the second part of his evidentiary hearing was held from October 29, 2018, through October 31, 2018.

8 CR-18-0973

as they are presented in his fifth amended petition. (Evid. Hrg. Oct.

2017, R. 10-11.)5

At the hearing, Travis presented testimony from Dr. Michael Brook,

Dr. Marti Loring, Cary Travis, John Barnett, George Elbrecht, and

Robert King. Travis also submitted affidavits from Linda Timpson,

Barbara Nihill, and Dr. Loring. The State presented testimony from Dr.

Glen King. The State also submitted affidavits from Elbrecht, Robert

King, and Allen McGraw, as well as transcripts from the depositions of

Cary Travis and Melissa Bartlett. After the hearing, the circuit court

allowed both parties to file post-hearing briefs.

In his post-hearing brief, Travis argued the claims of ineffective

assistance of counsel that he presented in his fifth amended petition that,

he said, he had proved at the evidentiary hearing. But Travis also argued

that he proved other claims of ineffective assistance of counsel that he

did not present in either his original petition or in any of the five

amendments to his petition. (C. 2438-2539.) Thereafter, both Travis and

5A review of the record on appeal confirms that the issues listed previously from Travis's fourth amended petition are virtually identical to the issues presented in his fifth amended petition. 9 CR-18-0973

the State submitted to the circuit court proposed final orders. (See Fifth

Supplemental Record on Appeal, C. 2-246.)

On May 7, 2019, the circuit court issued an 88-page order denying

the claims Travis presented at the evidentiary hearing. (C. 4067-4154.)

The circuit court did not address any of the specific claims of ineffective

assistance of counsel that Travis argued for the first time in his post-

hearing brief. Travis filed no post-judgment motions challenging the

circuit court's judgment. This appeal follows.

Standard of Review

On appeal, Travis challenges the circuit court's judgment as to

those claims of ineffective assistance of counsel he presented in his fifth

amended petition that the circuit court denied. Travis also presents to

this Court the claims of ineffective assistance of counsel that he raised

for the first time in his post-hearing brief that the circuit court did not

address in its order denying him postconviction relief.

As to the arguments Travis raises on appeal that concern the claims

of ineffective assistance of counsel that he presented in his fifth amended

petition, which the circuit court gave him an opportunity to prove at the

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evidentiary hearing, and which the circuit court denied, the standard of

review is well settled:

" ' "The burden of proof in a Rule 32 proceeding rests solely with the petitioner, not the State." Davis v. State, 9 So. 3d 514, 519 (Ala. Crim. App. 2006), rev'd on other grounds, 9 So. 3d 537 (Ala. 2007). "[I]n a Rule 32, Ala. R. Crim. P., proceeding, the burden of proof is upon the petitioner seeking post-conviction relief to establish his grounds for relief by a preponderance of the evidence." Wilson v. State, 644 So. 2d 1326, 1328 (Ala. Crim. App. 1994). Rule 32.3, Ala. R. Crim. P., specifically provides that "[t]he petitioner shall have the burden of ... proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." '

"Wilkerson v. State, 70 So. 3d 442, 451 (Ala. Crim. App. 2011).

" '[W]hen 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). Also, 'where a trial court does not receive evidence ore tenus, but instead makes its judgment based on the pleadings, exhibits, and briefs, ... it is the duty of the appellate court to judge the evidence de novo.' Ex parte Horn, 718 So. 2d 694, 705 (Ala. 1998). Likewise, when a trial court makes its judgment 'based on the cold trial record,' the appellate court must review the evidence de novo. Ex parte Hinton, 172 So. 3d 348, 352 (Ala. 2012).

" 'However, where 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. 11 CR-18-0973

App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)). 'When conflicting evidence is presented ... a presumption of correctness is applied to the court's factual determinations.' State v. Hamlet, 913 So. 2d 493, 497 (Ala. Crim. App. 2005). This is true 'whether the dispute is based entirely upon oral testimony or upon a combination of oral testimony and documentary evidence.' Parker Towing Co. v. Triangle Aggregates, Inc., 143 So. 3d 159, 166 (Ala. 2013) (citations omitted). 'The credibility of witnesses is for the trier of fact, whose finding is conclusive on appeal. This Court cannot pass judgment on the truthfulness or falsity of testimony or on the credibility of witnesses.' Hope v. State, 521 So. 2d 1383, 1387 (Ala. Crim. App. 1988). Indeed, it is well settled that, in order to be entitled to relief, a postconviction 'petitioner must convince the trial judge of the truth of his allegation and the judge must "believe" the testimony.' Summers v. State, 366 So. 2d 336, 343 (Ala. Crim. App. 1978). See also Seibert v. State, 343 So. 2d 788, 790 (Ala. 1977)."

George v. State, 333 So. 3d 1022, 1031-32 (Ala. Crim. App. 2019).

Additionally, we note that when reviewing these Rule 32 claims the

plain-error standard does not apply. See Ex parte Dobyne, 805 So. 2d

763, 766 (Ala. 2001).

As to the arguments Travis raises on appeal that concern the claims

he raised for the first time in his post-hearing brief, this Court will not

address those claims for the following reasons.

It is well settled that "[t]he general rules of preservation apply to

Rule 32 proceedings" -- even in postconviction proceedings that involve

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the death penalty. Boyd v. State, 913 So. 2d 1113, 1123 (Ala. Crim. App.

2003) (collecting cases). Based on those general rules of preservation,

this Court has held that a Rule 32 petitioner cannot raise on appeal a

postconviction claim that was not included in either his original petition

or in any of his amendments to his petition. See Arrington v. State, 716

So. 2d 237, 239 (Ala. Crim. App. 1997) ("An appellant cannot raise an

issue on appeal from the denial of a Rule 32 petition which was not raised

in the Rule 32 petition.").

Of course, Travis concedes in his reply brief that he raises claims

on appeal that were not raised in his original petition or in any of the five

amendments to his petition that he filed before the evidentiary hearing.

Travis argues, however, that his post-hearing brief claims are properly

before this Court because, he says, they were "raised" at the evidentiary

hearing and presented in his post-hearing brief.

For example, the first issue Travis raises in his brief on appeal is

that his trial counsel were ineffective "during jury voir dire" because they

"failed to ask whether some potential jurors knew Travis." (Travis's brief,

p. 46.) Travis did not raise this claim of ineffective assistance of counsel

in his original petition or in any of the five amendments to his petition.

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Instead, Travis asked his counsel questions during the evidentiary

hearing about voir dire (Evid. Hrg. Oct. 2018, R. R. 181-84, 337-39), and,

after the hearing, Travis argued for the first time in his post-hearing brief

that his counsel were ineffective "during jury voir dire" (C. 2488-89).

In his reply brief, Travis argues that this specific claim of ineffective

assistance of counsel is properly before this Court because he "argued in

the Post-Hearing Brief and raised at the Rule 32 Hearing that trial

counsel failed to conduct adequate questioning or investigation during

voir dire to discover that the jury foreman was Travis's grade school

teacher." (Travis's reply brief, p. 20.) Travis also says that, by asking

questions about a claim at an evidentiary hearing and by raising a

specific claim of ineffective assistance of counsel in a post-hearing brief,

the "State and the Rule 32 court ... had notice of these issues and

opportunity to respond, and [thus he] is not improperly raising them for

the first time on appeal." (Travis's reply brief, p. 23.)

As best as we can tell, Travis's argument that his post-hearing-brief

claims are properly before this Court is premised on his belief that a Rule

32 petitioner's asking questions of a witness at an evidentiary hearing

about facts concerning claims that were not raised in a Rule 32 petition

14 CR-18-0973

or in any amendment to that petition and, after the evidentiary hearing,

arguing for the first time in a post-hearing brief that he is entitled to

relief on claims of ineffective assistance of counsel based on those

questions and the responses to those questions, is the functional

equivalent of amending a Rule 32 petition, making those newly raised

claims ripe for appeal. This Court disagrees with this argument.

Merely asking questions of a witness at an evidentiary hearing

about facts concerning some previously unpleaded and unspecified claim

for postconviction relief is not the equivalent of either properly "raising"

a claim for postconviction relief or properly amending a Rule 32 petition

under Rule 32.7(b), Ala. R. Crim. P. To hold otherwise would convert a

Rule 32 evidentiary hearing from a proceeding at which a petitioner must

prove a properly pleaded claim into a discovery tool that would allow a

petitioner to use an evidentiary hearing to seek out information about

claims that were not alleged in a Rule 32 petition or in any amendment

to that petition. A Rule 32 evidentiary hearing is narrow in scope, and it

is neither a discovery tool nor is it a venue to explore the possibility of

the existence of new claims. The purpose of a Rule 32 evidentiary hearing

is to give a petitioner the opportunity to satisfy his or her burden of proof

15 CR-18-0973

as to claims that were properly raised and sufficiently pleaded in a Rule

32 petition and only if those claims are "meritorious on their face." See

Jackson v. State, 133 So. 3d 420, 444-45 (Ala. Crim. App. 2009) ("Neither

this Court nor the Alabama Supreme Court has ever held that an

evidentiary hearing must be conducted on every postconviction petition

that raises a claim of ineffective assistance of counsel. Such a

requirement would burden an already overburdened judiciary. '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).").

Although Travis contends that his claims are properly before this

Court because he "raised" them in his post-hearing brief, this Court has

held that raising new claims in a post-hearing brief is not the equivalent

of properly amending a petition under Rule 32.7(b). See McGahee v.

State, 885 So. 2d 191, 219 (Ala. Crim. App. 2003) (holding that, "although

McGahee presented this argument in his post-hearing brief, that

presentation was not, as McGahee argues, equivalent to an amendment

to the petition pursuant to Rule 32.7, Ala. R. Crim. P.," and noting that

16 CR-18-0973

"McGahee's argument that he could not have presented this claim until

after the evidence had been presented at the evidentiary hearing is

specious" because "McGahee's second amended petition contained dozens

of claims and subclaims, none of which could be proven until evidence

was taken"). Thus, the claims Travis argued for the first time in his post-

hearing brief were not properly presented to the circuit court, and,

consequently, are not properly before this Court for appellate review.

But even if we construed Rule 32 in such a way that would allow a

petitioner to "amend" his or her Rule 32 petition by asking questions

during an evidentiary hearing and by raising claims based on those

questions for the first time in a post-hearing brief, which we do not,

Travis's claims would still not be properly before this Court. As Travis

points out in his reply brief, the circuit court did not rule on the claims

he raised for the first time in his post-hearing brief. In other words,

Travis never obtained an adverse ruling on any of the claims that he

raised in his post-hearing brief. What is more, Travis did not file any

post-judgment motions in the circuit court arguing that the circuit court

failed to rule on these claims when it denied him postconviction relief.

So, even if we viewed these claims as having been raised in an "amended"

17 CR-18-0973

petition, "[b]ecause [Travis] never objected to the circuit court's failure to

rule on his amended petition and because he suffered no adverse ruling

on the amended petition from the circuit court, th[ose] issue[s] [are] not

properly before this court for review." Boyd, 913 So. 2d at 1124.

In sum, the arguments Travis raises on appeal that were presented

in his petition and that the circuit court denied are properly before this

Court, but the arguments Travis raises on appeal that were presented to

the circuit court for the first time in his post-hearing brief are not

properly before this Court for appellate review.

Finally, before turning to Travis's arguments on appeal, we note

that the State correctly points out that Travis's "opening brief resembles

more of an amended Rule 32 petition than an appellate brief" in the sense

that it presents claims of ineffective assistance of counsel to this Court

as if this Court was a circuit court. (State's brief, p. ii.) In so doing,

Travis presents claims that, as discussed above, he did not present in his

Rule 32 petition or in any properly amended petition; he uses his brief on

appeal to modify claims that he either raised in his petition or in a

properly filed amended petition by supporting those claims with new

factual allegations; and, in many instances, "merely re-raises claims that

18 CR-18-0973

he raised in his fifth amended petition and asserts that he is entitled to

relief" without "engag[ing] with the circuit court's final order" or

addressing the court's "findings and conclusions with regard to those

claims, much less argu[ing] why he believes that the circuit court erred

in denying them." (State's brief, p. ii.) We will address the claims that

Travis raises on appeal that fall into the above-mentioned categories with

the following well settled principles in mind: (1) when a petitioner

"raise[s] on appeal different or more specific factual allegations in

support of a postconviction claim that were not included in his or her

petition," those newly raised allegations are not properly before this

Court, Woodward v. State, 276 So. 3d 713, 771 (Ala. Crim. App. 2018);

and (2) when a petitioner merely restates allegations that he or she

raised in a Rule 32 petition without explaining to this Court how the

circuit court erred by providing this Court with citations to legal

authority supporting those arguments, that petitioner has not satisfied

Rule 28(a)(10), Ala. R. App. P., and his or her claims are deemed

abandoned and waived. See, e.g., Calhoun v. State, 261 So. 3d 457, 472-

73 (Ala. Crim. App. 2016) (holding that Calhoun failed to "adequately

argue" his claims on appeal because he "merely restate[d] these

19 CR-18-0973

allegations from his petition," argued that the allegations in his petition

showed that his counsel was ineffective, and failed to cite "legal authority

to support these contentions"). With these principles in mind, we now

turn to Travis's arguments on appeal.

Discussion

On appeal, Travis argues that the circuit court erred when it denied

his claims of guilt-phase ineffective assistance of counsel and his claims

of penalty-phase ineffective assistance of counsel. Travis further argues

that the circuit court erred when it "failed to consider the cumulative

effect" of his trial counsels' ineffective assistance.

It is well settled that,

" '[t]o prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) that counsel's performance was deficient and (2) that the petitioner was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

" ' "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or 20 CR-18-0973

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

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

" ' "[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 21 CR-18-0973

in one case may be sound or even brilliant in another.' Strickland, 104 S. Ct. at 2067. Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. But, the issue is not what is possible or 'what is prudent or appropriate, but only what is constitutionally compelled.' Burger v. Kemp, 483 U.S. 776, 107 S. Ct. 3114, 3126, 97 L. Ed. 2d 638 (1987)."

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

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

"Yeomans v. State, [195] So. 3d [1018], [1026] (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)." 22 CR-18-0973

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

Additionally, because the claims Travis raises on appeal concern claims

of ineffective assistance of counsel that he had an opportunity to prove at

an evidentiary hearing, we also note that

" 'the presumption that counsel performed effectively " 'is like the "presumption of innocence" in a criminal trial," ' and the petitioner bears the burden of disproving that presumption. Hunt v. State, 940 So. 2d 1041, 1059 (Ala. Crim. App. 2005) (quoting Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000) (en banc)). "Never does the government acquire the burden to show competence, even when some evidence to the contrary might be offered by the petitioner." Id. " ' "An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption [of effective representation]. Therefore, 'where the record is incomplete or unclear about [counsel]'s actions, [a court] will presume that he did what he should have done, and that he exercised reasonable professional judgment.' " ' " Hunt, 940 So. 2d at 1070-71 (quoting Grayson v. Thompson, 257 F.3d 1194, 1218 (11th Cir. 2001), quoting in turn Chandler, 218 F.3d at 1314 n.15, quoting in turn Williams v. Head, 185 F.3d 1223, 1228 (11th Cir. 1999)). Thus, to overcome the strong presumption of effectiveness, a Rule 32 petitioner [ordinarily] must, at his evidentiary hearing, question trial counsel regarding his or her actions and reasoning. See, e.g., Broadnax v. State, 130 So. 3d 1232, 1255-56 (Ala. Crim. App. 2013) (recognizing that "[i]t is extremely difficult, if not impossible, to prove a claim of ineffective 23 CR-18-0973

assistance of counsel without questioning counsel about the specific claim, especially when the claim is based on specific actions, or inactions, of counsel that occurred outside the record[, and holding that the] circuit court correctly found that Broadnax, by failing to question his attorneys about this specific claim, failed to overcome the presumption that counsel acted reasonably"); Whitson v. State, 109 So. 3d 665, 676 (Ala. Crim. App. 2012) (holding that a petitioner failed to meet his burden of overcoming the presumption that counsel were effective because the petitioner failed to question appellate counsel regarding their reasoning); … McGahee v. State, 885 So. 2d 191, 221-22 (Ala. Crim. App. 2003) ("[C]ounsel at the Rule 32 hearing did not ask trial counsel any questions about his reasons for not calling the additional witnesses to testify. Because he has failed to present any evidence about counsel's decisions, we view trial counsel's actions as strategic decisions, which are virtually unassailable."); Williams v. Head, 185 F.3d at 1228; Adams v. Wainwright, 709 F.2d 1443, 1445-46 (11th Cir. 1983) ("[The petitioner] did not call trial counsel to testify ... [; therefore,] there is no basis in this record for finding that counsel did not sufficiently investigate [the petitioner's] background.").'

"Stallworth v. State, 171 So. 3d 53, 92-93 (Ala. Crim. App. 2013) (emphasis added)."

Brooks v. State, 340 So. 3d 410, 439-40 (Ala. Crim. App. 2020). With

these principles in mind, we address Travis's claims of ineffective

assistance of counsel.

I. Guilt-Phase Claims of Ineffective Assistance of Counsel 24 CR-18-0973

I.A.

Travis first argues that his counsel "were ineffective during jury

voir dire." (Travis's brief, pp. 45-47.) Travis, however, did not raise this

claim in his Rule 32 petition or in any of the five amendments to his

petition. Rather, Travis presented this specific claim of ineffective

assistance of counsel to the circuit court for the first time in his post-

hearing brief (C. 2488-89), and what is more, he never obtained an

adverse ruling on this claim. Consequently, as explained above, Travis's

argument on appeal is not properly before this Court.

I.B.

Travis next argues that his "lead counsel was ineffective during

opening statements." (Travis's brief, p. 48.) According to Travis, his

counsel "used the opening statement to distance himself from Travis

instead of explaining any theory of the case or the evidence he was

planning to present." (Travis's brief, p. 48 (footnote omitted).) Travis

says that his counsel did not mention Travis's codefendant, Steven Hall,

"but made sure to put in a plug for himself"; "did not say anything to the

jury about the evidence that he knew or should have known would show

that Travis was not guilty of capital murder"; "did not explain the State's

25 CR-18-0973

burden to prove beyond a reasonable doubt Travis had a specific intent

to murder or aid the murder as a predicate for finding him guilty"; "failed

to explain how the evidence could allow the jury to conclude that Travis

did not know Hall was going to kill Ms. Haskew, or any other alternative

theory of the case based on the evidence"; and "did not even mention

felony murder in his opening statement." (Travis's brief, pp. 48-49.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective because they "failed to present a coherent theory of defense to

the jury." (C. 2025.) In raising that claim, Travis alleged:

"Defense Counsel's insufficient opening statement and closing argument made no mention of the alternative view that Steven Hall alone shot and killed Clarene Haskew, with no aid from Mr. Travis. Indeed, this alternative theory would have comported entirely with Mr. Hall's sworn testimony at his plea hearing in which he admitted under oath that he -- not Mr. Travis -- was solely responsible for beating, strangling, and shooting Mrs. Haskew.[6] Defense Counsel also failed to explain to the jury that the prosecution was relying solely on circumstantial evidence. Nor did Defense Counsel ever explain felony murder to the jury, which could have been argued as a defense alternative to capital murder. Defense Counsel also failed to demonstrate to the jury that

6At his evidentiary hearing, Travis admitted as "Petitioner's Exhibit 16" a copy of the reporter's transcript from Steven Hall's guilty- plea proceeding. (Fourth Supplemental Record on Appeal, C. 1558-81.) Although Hall admitted he was guilty of capital murder, Hall did not admit during that proceeding that he had acted alone in killing Haskew. (Fourth Supplemental Record on Appeal, C. 1573-74.) 26 CR-18-0973

the State did not present sufficient evidence to prove intent to kill, an essential element of first degree murder."

(C. 2025-26 (footnote omitted).) The circuit court gave Travis an

opportunity to prove this claim at an evidentiary hearing, and it gave

Travis an opportunity to file a post-hearing brief to show how he satisfied

his burden of proof as to this claim.

In his post-hearing brief, however, Travis modified the claim he

presented in his fifth amended petition, arguing that his counsel were

ineffective "during opening statement." (C. 2489.) In making his

argument, Travis reasserted his allegation that his counsel failed to

mention felony murder in the opening statement. (C. 2491.) Travis also

added new factual allegations showing why, he thought, his counsel were

ineffective during the opening statement, including that "counsel used

the opening statement to distance himself from Mr. Travis instead of

explaining his (or any) theory of the case or the evidence he was planning

to present"; that "counsel did not even mention Mr. Hall, but he made

sure to put in a plug for himself"; that counsel "did not say anything to

the jury about the evidence that he knew or should have known about

that would show that Mr. Travis was not guilty of capital murder"; that

counsel "did not explain the state's burden to prove beyond a reasonable 27 CR-18-0973

doubt Mr. Travis had had a specific intent to murder or aid the murder

as a predicate for a finding him guilty"; and that counsel "failed to explain

how the evidence could allow the jury to conclude that Mr. Travis did not

know Mr. Hall was going to kill Ms. Haskew, or any other alternative

theory of the case based on the evidence." (C. 2490-91.)

The new factual allegations that Travis raised in his post-hearing

brief as to his counsels' effectiveness during opening statement are not

properly before this Court because they were not included in either

Travis's Rule 32 petition or in any of the five amendments to his petition.

See Bryant v. State, 181 So. 3d 1087, 1108 (Ala. Crim. App. 2011) ("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 petitions; therefore, they are not

properly before this Court for review and will not be considered.").

Consequently, the only argument properly before this Court on appeal is

Travis's claim that is counsel were ineffective for failing to "mention

felony murder in his opening statement." (Travis's brief, pp. 48-49.)

Travis's claim is without merit.

"In People v. Leeper, 317 Ill. App. 3d 475, 251 Ill. Dec. 202, 740 N.E.2d 32 (2000), the Illinois Court of Appeals made 28 CR-18-0973

the following observations concerning an attorney's performance during opening statements:

" '[Counsel] made only a perfunctory opening statement and closing argument. Counsel is not required by law to make an opening statement at all. Pietsch v. Pietsch, 245 Ill. 454, 456-57, 92 N.E. 325, 326 (1910). [Counsel's] opening statement was short; however, it explained what [counsel], in his professional judgment, thought was necessary. Specifically, [counsel] explained that the burden of proof was on the State and suggested that the jury listen carefully to both versions of the events. ... The contents of the opening statement and closing argument clearly lie within the professional judgment of counsel and, thus, cannot support a claim of ineffective assistance of counsel.'

"317 Ill. App. 3d at 484, 251 Ill. Dec. 202, 740 N.E.2d at 40. See also Gregory G. Sarno, Annotation, Adequacy of Defense Counsel's Representation of Criminal Client Regarding Argument, 6 A.L.R. 4th 16 (1981)."

Washington v. State, 95 So. 3d 26, 54 (Ala. Crim. App. 2012). Because

opening statement is a matter of trial strategy that clearly lies within the

judgment of counsel, " '[w]ithout some explanation as to why counsel

acted as he did, we presume that his actions were the product of an

overall strategic plan.' Tong v. State, 25 S.W.3d 707, 714 (Tex. Crim.

App. 2000)." Washington, 95 So. 3d at 54.

Here, during the evidentiary hearing, Travis asked the trial counsel

who gave the opening statement and the closing argument -- George 29 CR-18-0973

Elbrecht -- questions about the felony-murder argument he made to the

jury during closing argument (see Evid. Hrg. Oct. 2018, R. 213), but

Travis did not ask Elbrecht any questions during the evidentiary hearing

about his not mentioning felony murder to the jury during the opening

statement. "When the record is silent as to why counsel performed a

certain way[,] we must presume that counsel's actions were reasonable.

See Grayson [v. Thompson, 257 F.3d 1194 (11th Cir. 2001)]."

Washington, 95 So. 3d at 54. Because Travis did not ask his counsel any

questions about his reasoning for not mentioning felony murder during

the opening statement, Travis failed to prove that his counsels'

performance was deficient.

Moreover, Travis failed to prove that he was prejudiced by his

counsels' failure to mention felony murder to the jury during the opening

statement when -- as Travis conceded in his questioning of his counsel

and as the circuit court noted when it denied Travis's claim -- Travis's

trial counsel argued felony murder to the jury during the closing

argument. (C. 4112-13.) Because Travis failed to satisfy his burden of

proof as to this claim, the circuit court did not err when it denied Travis's

claim.

30 CR-18-0973

I.C.

Travis next argues that his "trial counsel were ineffective because

they failed adequately to prepare and investigate." (Travis's brief, pp.

49-59.) Specifically, Travis argues that his counsel "did not devote the

time or resources needed to defend Travis's case" (Travis's brief, p. 51);

"failed to investigate and present crucial and exculpatory evidence"

(Travis's brief, p. 53); and "fail[ed] to investigate applicable legal

theories" (Travis's brief, p. 57). We address each argument in turn.

I.C.1.

Travis argues that his counsel were ineffective because, he says,

they "did not devote the time or resources needed to defend Travis's case,

and were therefore unprepared for trial." (Travis's brief, p. 51.)

According to Travis, his counsel "asked for numerous breaks so that he

could look for case law or read documents" and "even admitted he was

unprepared, attributing it to the fact that he was 'limited by funds and

time.' " (Travis's brief, p. 51.) Travis also argues that his counsel "were

so unprepared that [the trial judge] at times had to do their job for them."

(Travis's brief, p. 53.) Travis did not raise this claim in his Rule 32

petition or in any of the five amendments to his petition. Rather, Travis

31 CR-18-0973

presented this claim of ineffective assistance of counsel to the circuit

court for the first time in his post-hearing brief, and, what is more, he

never obtained an adverse ruling on this claim. (C. 2487-88.)

Consequently, Travis's argument is not properly before this Court.

I.C.2.

Travis next argues that his counsel were ineffective because, he

says, they "failed to investigate and present crucial and exculpatory

evidence." (Travis's brief, p. 53.) Specifically, Travis argues that his

counsel failed to investigate and present:

• Evidence "that 'Thunderstruck' -- the phrase written over the victim's body -- was the name of Hall's favorite ACDC song." (Travis's brief, p. 54.)

• Evidence that the " 'e' in the word 'Thunderstruck' painted at the victim's home was written in a distinctive backwards 3 manner -- the same as the way Hall had written the 'e's' in his Satanic bible." According to Travis, a "handwriting expert or even a lay person's review of Hall's other handwriting easily would have provided even more conclusive evidence that Hall was the one who took the time to paint around the victim's body." (Travis's brief, p. 54.)

• Evidence from Paula Shiver, Hall's girlfriend, "that the hand-written Satanic bible recovered from Hall and Travis belonged to Hall." (Travis's brief, p. 55.)

• Evidence of Travis's "distance from Satanism" and his lack of "connection to Satanism, the phrase 32 CR-18-0973

'Thunderstruck' or the pentagram." (Travis's brief, p. 55.)

• Evidence that the reason Travis "stayed with Hall the night of the murder is because he reasonably believed that had he tried to turn Hall into the police, Hall would have killed him and/or his parents." (Travis's brief, p. 55.)

• Evidence that "[a] comparison of footwear impressions at the crime scene to Travis's shoes showed no match." (Travis's brief, p. 55.)

• Evidence of Travis's admission "to having a screwdriver on the night in question, which was supportive of his consistent story that he had been hotwiring a car when Hall decided on his own to enter the victim's house and kill her." (Travis's brief, p. 55.)

• Evidence that "no blood (or any other physical evidence) was found on Travis or any of his clothing or possessions." (Travis's brief, p. 56.)

• Evidence that "Travis's hair did not match any hairs found on Ms. Haskew's body." (Travis's brief, p. 56.)

• Evidence from "a forensic or crime scene expert to interpret the evidence of the victim's wounds and explain to the jury how Hall could have committed the crime alone." (Travis's brief, p. 56.)

(Travis's brief, pp. 54-56.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective "for failing to procure other necessary expert assistance"

including a "handwriting and graffiti expert, who would have established 33 CR-18-0973

that the word 'Thunderstruck' spray painted in the house of the victim

placed Mr. Hall at the crime scene, not Mr. Travis," and that Travis

intended "to proffer the testimony of expert Richard A. Roper, Ph.D., an

expert in analyzing handwriting and graffiti, to establish the likelihood

that Mr. Hall wrote the word 'Thunderstruck' at the scene of the crime

and the lack of likelihood that Mr. Travis was the author." 7 (C. 2019.)

Travis also alleged in his fifth amended petition that his counsel

were ineffective for failing "to effectively challenge the State's

presentation of trial evidence against Mr. Travis" because,

"[a]lthough a substantial amount of blood was found at the crime scene, Defense Counsel failed to explain through a witness or to the jury in closing arguments that Mr. Travis's clothing and belongings were tested for blood and no blood was found. Defense counsel also failed to demonstrate that footprints found at the scene of the crime did not match Mr. Travis's shoes."

(C. 2020.) The circuit court gave Travis an opportunity to prove these

claims at an evidentiary hearing, and, after the hearing, it gave him an

7As set out above, in his brief on appeal and in his post-hearing brief, Travis adds to this claim that his counsel were ineffective for failing to present a layperson's opinion as to whether Hall wrote the word "Thunderstruck" in Haskew's house. This claim is not properly before this Court because it was not presented in either Travis's Rule 32 petition or in any proper amendment to his petition. 34 CR-18-0973

opportunity to file a post-hearing brief to show how he met his burden of

proof as to these claims.

In his post-hearing brief, Travis combined his claim that his counsel

were ineffective "for failing to procure other necessary expert assistance"

with his claim that his counsel were ineffective for failing "to effectively

challenge the State's presentation of trial evidence against Mr. Travis,"

creating a new claim -- that his counsel were ineffective because they

failed "to investigate and present crucial and exculpatory evidence." (C.

2491-94.) In so doing, Travis alleged that his counsel failed to investigate

and present the handwriting expert, blood evidence, and footprint

evidence, all of which he raised in his fifth amended petition, but he also

added new allegations that his counsel failed to investigate and present

certain "crucial and exculpatory" evidence at his trial.

To the extent that Travis's argument on appeal can be construed as

challenging the circuit court's denial of the claims that he raised in his

fifth amended petition (i.e., his claims concerning his counsel's failure to

procure a handwriting or graffiti expert to testify about who wrote the

word "Thunderstruck" in Haskew's home and his counsel's failure to

adequately present evidence of the absence of Haskew's blood on Travis

35 CR-18-0973

and the absence of Travis's footwear impressions at the crime scene),

those claims are properly before this Court. Travis's arguments,

however, are without merit.

First, Travis failed to prove his claim that his counsel was

ineffective for failing to obtain a handwriting and graffiti expert to show

that Hall had written the word "Thunderstruck" in Haskew's home.

Indeed, as the circuit court noted in its order denying this claim, Travis

failed to call any "expert witness in support of this claim." (C. 4094.)

Travis failed to prove that there was any expert witness who would have

both concluded that Hall wrote "Thunderstruck" and been able and

willing to testify at Travis's trial. As this Court has explained, "to obtain

relief on a claim that counsel were ineffective for failing to hire an expert

witness, the petitioner must first plead the name of that expert, the

substance of that expert's testimony, and that the expert is willing and

available to testify at the petitioner's trial; then the petitioner must prove

each of those allegations at an evidentiary hearing." Brooks v. State, 340

So. 3d 410, 437 (Ala. Crim. App. 2020). Although Travis pleaded that Dr.

Roper would testify to "the likelihood that Mr. Hall wrote the word

'Thunderstruck' at the scene of the crime and the lack of likelihood that

36 CR-18-0973

Mr. Travis was the author" (C. 2019), Dr. Roper did not testify at the

evidentiary hearing and Travis failed to prove that allegation at the

evidentiary hearing. Thus, Travis failed to prove his claim that his

counsel were deficient in failing to obtain an expert in handwriting and

graffiti.

Additionally, Travis failed to prove that he was prejudiced by his

counsels' failure. As the circuit court correctly found:

"Even assuming that his counsel could have located an expert witness who would have offered that testimony at his trial, Travis failed to establish that such testimony would have benefitted his defense. George Elbrecht testified that evidence showing that Hall painted the word at the scene of the crime would not have exculpated Travis and, instead, at most would have inculpated Hall in the commission of the offense."

(C. 4094-95.) Thus, the circuit court did not err when it denied this claim.

Travis also failed to prove his claims that his counsel were

ineffective for failing to adequately present evidence of the absence of

Haskew's blood on Travis's clothing and for failing to present evidence of

the absence of Travis's footwear impressions at the crime scene.

During the evidentiary hearing, Travis's Rule 32 counsel asked

Elbrecht about having received blood evidence from the State concerning

37 CR-18-0973

the clothes that both Hall and Travis were wearing when they were

apprehended by law enforcement:

"[Rule 32 counsel]: Okay. Here is a report that was provided to you by the Alabama Department of Forensic Sciences.

"[Elbrecht]: Right.

"[Rule 32 counsel]: Okay. Do you see that -- it's, like, the fifth one down, one sealed brown paper bag containing clothing from Steve Hall?

"[Rule 32 counsel]: One sealed brown paper bag containing clothing from William H. Travis. That's a typo, right?

"[Rule 32 counsel]: It's Wayne Travis. You can set that aside.

"And then in CR613, we've got more clothing that was provided, stapled closed and said to contain clothing from the suspect, Wayne Travis.

"Do you see that?

"[Rule 32 counsel]: And then we have this one. This refers to additional clothes that were tested by the State.

"If you look at the second line, it’s a brown paper bag containing shoes from Wayne Travis. 38 CR-18-0973

"[Rule 32 counsel]: Right. You understand that those items were tested for blood? Did you understand that, or do you not recall that, sitting here today?

"[Elbrecht]: I don't recall.

"....

"[Rule 32 counsel]: On December 18, 1991, [Alabama Bureau of Investigation] Investigator Simon Benson submitted one sealed bag identified as containing clothing of William. We know it's Wayne Travis. The clothing consisted of a shirt, blue jeans, and men's briefs. Laboratory examination failed to disclose the presence of blood.

"[Rule 32 counsel]: So, in other words, they tested for blood, Wayne's clothing, and they did not find any; is that correct?

"[Rule 32 counsel]: Why did you --

"[Elbrecht]: They didn't find any on Mr. Hall, either, in number 17.

"[Rule 32 counsel]: That's true. But this is your defense of Wayne Travis, correct?

"[Elbrecht]: Right. I'm just saying.

39 CR-18-0973

"[Rule 32 counsel]: I understand. But you could have called Ms. Scott and --

"[Elbrecht]: If I called her, it would be in the record. If I didn't call her, it's not in the record.

"[Rule 32 counsel]: I understand. But wouldn't it be useful to call her, to have her testify to the fact that your client didn't have any blood on his clothing?

"[Elbrecht]: Whoever I called, I called; and if I didn't call her, I didn't call her.

"[Rule 32 counsel]: Do you recall if you considered that as part of your strategy?

"[Elbrecht]: It's been 25 years.

"[Rule 32 counsel]: Okay. So you don't know whether you did or not?

"[Elbrecht]: Well, you know, I -- we considered a lot of things back then, but I just -- I don't recall some of those decisions from 25 years ago.

"[Rule 32 counsel]: Okay. And you don't -- sitting here today, can you envision a scenario in which it would have been helpful to your defense, since there was a lot of evidence that they put in circumstantially, to rebut the presumption of the burden of proof, as you said your strategy was?

"[Elbrecht]: I don't understand your question. Ask it again.

"[Rule 32 counsel]: You were trying to rebut and show that the State did not meet its burden of proof, which was --

"[Elbrecht]: That was part of our strategy, yes. 40 CR-18-0973

"[Rule 32 counsel]: Okay. That's what you said in your affidavit.

"[Rule 32 counsel]: Right. So you were trying to establish that the State didn't meet its burden of proof beyond a reasonable doubt and to a moral certainty; is that correct?

"[Elbrecht]: Correct.

"[Rule 32 counsel]: And showing that your client did not have any blood on his clothing, would that tend to help you in your case or hurt you in your case?

"[Elbrecht]: I just -- I don't recall."

(Evid. Hrg. Oct. 2018, R. 404-08.) Travis's Rule 32 counsel also asked

Elbrecht about having received footwear-impression evidence:

"[Rule 32 counsel]: Okay. So I'm going to show you a report prepared by the Alabama Department of Forensic Sciences. Do you recognize that document?

"[Elbrecht]: No.

"[Rule 32 counsel]: Do you see that it's -- the subject line is Clarene Haskew?

"[Elbrecht]: Yes.

"[Rule 32 counsel]: And that two footwear impressions from the crime scene were taken?

"[Elbrecht]: I see that.

41 CR-18-0973

"[Rule 32 counsel]: Yeah. And are you aware that this was provided to you by the State in connection with your preparation for your defense?

"[Elbrecht]: I'm sure it was.

"[Rule 32 counsel]: Okay. You can put that aside. So there were footwear impressions from the scene.

"Subsequently, at CR626 and 627, there was an analysis done of those footwear impressions by Scott Milroy. Do you see that?

"[Rule 32 counsel]: So let's look at the items that Simon Benson provided to Scott Milroy.

"Item 20 was one sealed brown paper bag containing gauchos, boots, identified as from Steven Hall. See that?

"[Rule 32 counsel]: One sealed brown paper bag containing Red Wing shoes, boots, identified as from Wayne H. Travis, right?

"[Rule 32 counsel]: And then he submitted one sealed brown paper bag containing white Reebok tennis shoes, identified as from Wayne Travis.

"[Rule 32 counsel]: Okay. It was requested that the items of evidence submitted above be examined and compared to the footwear impression cast I just gave to you, in 608. 42 CR-18-0973

"[Rule 32 counsel]: Okay. Laboratory examination of the footwear impression cast item 24A revealed insufficient detail for comparison.

"[Rule 32 counsel]: Laboratory examination of the footwear impression cast item 24B revealed a partial impression. Comparison of this partial impression to items 21, 22, and 23, suspect's shoes revealed that the impression is not of the same design as the soles of the shoes submitted above.

"[Rule 32 counsel]: Okay. You didn't offer this information into evidence?

"[Elbrecht]: No, I did not.

"[Rule 32 counsel]: And why is that?

"[Rule 32 counsel]: Okay. But if you're trying to show that the State didn't meet its burden of proof, wouldn't this have been helpful to show that there was no way they could link your client to the crime scene?

"[Elbrecht]: No, it would not.

"[Rule 32 counsel]: Why is that?

43 CR-18-0973

"[Elbrecht]: I don't know. That's just my opinion.

"[Rule 32 counsel]: Okay. So you're -- sitting here today, that's your opinion.

"Do you recall what your opinion was at the time?

"[Elbrecht]: We didn't offer this into evidence.

"[Rule 32 counsel]: And you don't know why?

"[Elbrecht]: 25 years ago."

(Evid. Hrg. Oct. 2018, R. 393-96.)

The circuit court denied Travis's blood-evidence claim and his

footwear-impression-evidence claim, finding that "the record is silent as

to Travis's counsel's reasons for not" introducing evidence that Haskew's

blood was not found on Travis's clothing and for not introducing evidence

that the footprints founds at the scene did not match Travis's shoes, and

concluding that, "[w]here the record is unclear -- either because an issue

was not addressed or because Travis's counsel could not recall -- this

Court will presume that his counsel acted in a manner consistent with

the 'counsel' that is guaranteed by the Sixth Amendment." (C. 4098-

4100.) We agree with the circuit court.

This Court has explained that " 'the presumption that counsel

performed effectively " 'is like the "presumption of innocence" in a 44 CR-18-0973

criminal trial,' " and the petitioner bears the burden of disproving that

presumption. Hunt v. State, 940 So. 2d 1041, 1059 (Ala. Crim. App. 2005)

(quoting Chandler v. United States, 218 F.3d 1305, 1314 n. 15 (11th Cir.

2000) (en banc)).' " Reeves v. State, 226 So. 3d 711, 748 (Ala. Crim. App.

2016) (quoting Stallworth v. State, 171 So. 3d 53, 92-93 (Ala. Crim. App.

2013)). A petitioner can overcome the presumption that counsel

performed effectively by presenting "evidence to the contrary." Reeves,

226 So. 3d at 747. Here, although Travis's Rule 32 counsel asked

Elbrecht about the blood evidence and the footwear-impression evidence,

Elbrecht could not recall the specific reasons as to why they did not

present that evidence due to the passage of time between preparing for

Travis's trial and the Rule 32 evidentiary hearing -- approximately 25

years.

What is clear from trial counsels' testimony at the evidentiary

hearing is that trial counsels' ultimate strategy was to hold the State to

its burden of proof and "to keep as much of the evidence out as possible."

(Evid. Hrg. Oct. 2018, R. 184.) Elbrecht explained that he wanted "to

ensure that [the State] didn't get anything into evidence that would harm

Mr. Travis." (Evid. Hrg. Oct. 2018, R. 184.) Travis failed to prove that

45 CR-18-0973

his counsels' decisions not to present footwear-impression evidence and

blood evidence in order to create an inference that Travis did not enter

Haskew's house was not a reasonable strategy under the circumstances

of this case. Indeed, based on the record before this Court in Travis's

direct appeal, Travis's trial counsels' decision not to present that evidence

could have kept the State from presenting evidence that would have

proved that Travis was, in fact, in Haskew's house at the time she was

murdered.

For example, after he was apprehended by law enforcement, Travis

waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and he

provided a statement to Agent Simon Benson of the Alabama Bureau of

Investigation and to other law-enforcement officers. (Record in CR-92-

0958, C. 643-95.) Travis's statement was given to his trial counsel in

discovery on December 19, 1992. (Record in CR-92-0958, C. 561.) In his

statement to law enforcement, Travis admitted that he entered Haskew's

house and that he was holding Haskew when Hall shot her. (Record in

CR-92-0958, C. 561.) Leading up to his trial and during his trial, the

State explained to Travis's counsel and to the trial court that it was not

sure whether it would offer into evidence Travis's statement to law

46 CR-18-0973

enforcement. (See, e.g., Record in CR-92-0958, R. 2661-64.) Ultimately,

the State did not offer Travis's statement at trial. But, if Travis's trial

counsel had taken the course of action suggested by his Rule 32 counsel,

the State could have rebutted the evidence inferring that Travis was not

in Haskew's house with Travis's statement that he was, in fact, in

Haskew's house at the time she was murdered. By avoiding the course

of action Travis's Rule 32 counsel suggests, Travis's trial counsel was free

to argue in his guilt-phase closing argument "that there's not one shred

of direct evidence placing Wayne Travis in [Haskew's] house." (Record in

CR-92-0958, R. 3103.)

In sum, Travis failed to prove that his counsels' decision not to

present blood evidence and footwear-impression evidence at trial was not

the result of a reasonable strategic decision. Thus, the circuit court did

not err when it denied this claim.

I.C.3.

Travis also argues that his counsel were ineffective because they

failed to "fully investigate all potential theories of the defense." (Travis's

brief, p. 57.) Travis argues that his counsel "claimed the defense strategy

was to hold the State to its burden of proof or persuade the jury to convict

47 CR-18-0973

Travis of a lesser offense, like felony murder," but his counsel failed to

"explain the lesser offenses to the jury." (Travis's brief, p. 58.) Travis

says that his counsel should have argued the following theories:

"Capital Murder: A defendant cannot be convicted of complicity in an intentional murder based on his 'presence alone.' See Lauderdale v. State, 555 So. 2d 799, 801 (Ala. Crim. App. 1989) (discussing complicity theory of aiding murder). The Alabama Court of Criminal Appeals explained the complicity standard in Lauderdale, noting that evidence that a defendant was merely present at a murder (and even assisted after the fact) would support only an 'accessory after the fact' conviction, nothing more. Id. Likewise, the Court of Criminal Appeals emphasized that to convict of intentionally aiding a crime, 'the State must prove more than defendant's mere presence.' Wright v. State, 333 So. 2d 215, 216 (Ala. Crim. App. 1976). If there is no evidence of 'prearrangement or preconcert between persons charged with crime, the mere presence of one of them' is not enough. Id. Trial counsel did not effectively explain this standard to the jury and did not highlight the lack of evidence linking Travis to the murder.

"Felony Murder: It is a foundational principle of Alabama law that a defendant may not be convicted of intentional murder 'unless the jury believe, beyond a reasonable doubt, and to a moral certainty, he knew the murder was going to be committed before it was committed, and aided, abetted, or encouraged its commission.' Murphy v. State, 108 Ala. 10, 18 So. 557, 558 (1895). One defense theory that could have been presented to the jury was that Travis participated in a burglary but did not participate in the murder itself. However, counsel did not present this defense to the jury and were not familiar with the elements of felony murder. Indeed, at the Rule 32 hearing, Elbrecht did not know the elements of felony murder. (See H.R. at 986: 21-24 ('Q. Okay. And what is -- what do you have to negate, with 48 CR-18-0973

respect to a capital case, to get felony murder? A. I don't know.').)

"Accomplice Liability: The Alabama Court of Criminal Appeals explained the complicity standard in Lauderdale, noting that evidence that a defendant was merely present at a murder (and even assisted after the fact) would support only an 'accessory after the fact' conviction, nothing more. Id. Trial counsel knew that the State's entire case against Travis boiled down to circumstantial evidence showing that he was in the area of the victim's home the night of the crime and that he had been arrested the day after with the victim's car. Trial counsel did not present this evidence or the theory of accomplice liability to the jury. (R. 3387-88 (rejecting proposed jury instruction regarding Travis as Hall's accomplice and Hall's domination over Travis telling defense counsel, 'Y'all have chosen not to put that in issue').)"

(Travis's brief, pp. 58-59.)

In his fifth amended petition, Travis alleged that his trial counsel

"had no coherent defense theory" and did not "properly explain to the jury

the lesser-included offense of felony murder." (C. 2009.) Later in his

petition, Travis claimed that his counsel were ineffective because they

"failed to present a coherent theory of defense to the jury," and, in making

that claim, Travis alleged:

"The law of capital murder and lesser-included offenses is complex. It was Defense Counsel's duty as an effective representative to explain to the jury the law of intent and felony murder, and to explain the deficiencies in the State's evidence of Mr. Travis's actions on the night of the crime in light of these laws." 49 CR-18-0973

(C. 2025-26.) The circuit court gave Travis an opportunity to prove this

claim at an evidentiary hearing, and it gave him an opportunity to file a

post-hearing brief to show how he had satisfied his burden of proof as to

his allegations.

In his post-hearing brief, however, Travis added allegations about

his counsels' failure to explain to the jury the interplay between felony

murder, accomplice liability, and capital murder. Because Travis did not

allege in his petition or in any of the five amendments to his petition that

his counsel were ineffective for failing to explain to the jury accomplice

liability and capital murder, those claims are not properly before this

Court for appellate review. Thus, the only claim properly before this

Court is Travis's argument that his counsel were ineffective for failing to

explain to the jury the lesser-included offense of felony murder.

The circuit court, in its order denying this claim, found that Travis's

claim was refuted by the record on direct appeal because, during the

closing argument, his "counsel argued that the prosecution failed to prove

beyond a reasonable doubt that he was guilty of capital murder and

further argued that the jury, at most, should convict him of felony

murder." (C. 4113.) 50 CR-18-0973

In challenging this judgment on appeal, Travis merely restates the

argument he raised in his post-hearing brief and cites general

propositions of law that, he says, hold that counsel has an obligation to

investigate potential defense theories. Travis, however, does not mention

the circuit court's findings as to this claim. Nor does Travis cite any

authority showing how the circuit court's findings were incorrect. Thus,

Travis's argument on appeal does not satisfy Rule 28(a)(10), Ala. R. App.

P., and is deemed to be waived. See, e.g., Calhoun, 261 So. 3d at 472-73

(holding that Calhoun failed to "adequately argue" his claims on appeal

because he "merely restate[d] these allegations from his petition," argued

that the allegations in his petition showed that his counsel was

ineffective and failed to cite "legal authority to support these

contentions"). Even so, Travis's claim is without merit.

To the extent that Travis's claim focuses on his counsels' failure to

present felony murder to the jury, as presented in his fifth amended

petition, that claim, as the circuit court found, is clearly refuted by the

record on direct appeal and, thus, is without merit. See, e.g., McNabb v.

State, 991 So. 2d 313, 320 (Ala. Crim. App. 2007) (holding that a claim

51 CR-18-0973

that is clearly refuted by the record on direct appeal is without merit).

Indeed, during closing argument, Travis's trial counsel argued, in part:

"[The district attorney] also told you that there are lesser included offenses. And, in this case, the Judge will charge you that there are lesser included offenses of intentional murder, felony murder and burglary in the first degree.

"If you find Mr. Travis guilty of capital murder, we move into the second aspect of this trial. If you find him guilty of any of the lesser included offenses, your service is done. If you find him guilty of intentional murder, you service, in this case, is over. If you find him guilty of felony murder, your service, in this case, is over. You remember that scheme that was described to you by [the district attorney]. We are at stage one where you must make the decision of guilt or no guilt on capital murder, guilt or no guilt on the lesser included offenses.

"Now, ladies and gentlemen of the jury, the Judge is going to charge you, in essence, and he's going to have a long charge and listen carefully to it. And it's our position that the evidence in this case does not rise to the level of capital murder. It does not rise to the level of capital murder. The Judge will charge you, in essence, that a Defendant who does not personally commit the act of killing, which constitutes the murder, that person can't be held responsible or guilty for capital murder unless he meets a certain complicity requirement.

"Ladies and gentlemen, no one in this courtroom likes the loss of life. I don't. The Judge doesn't. You don't. But, you gave the State, the Judge and the Defendant your commitment, when this case started, that if they wouldn't prove it, beyond a reasonable doubt and to a moral certainty, you would not find [Travis] guilty of capital murder.

52 CR-18-0973

"Now I say to you, ladies and gentlemen of the jury, that there's not one shred of direct evidence placing Wayne Travis in that house. I say to you, ladies and gentlemen of the jury, there's not one shred of direct evidence putting Wayne Travis in possession of the pistol. I say to you, ladies and gentlemen of the jury, there's not one shred of direct evidence that he personally, personally, committed the act of killing Mrs. Haskew.

"There is circumstantial evidence. And the Judge is going to describe that to you. He'll define it for you under the law. And the State has already taken the position, in this case, that there's enough circumstantial evidence to convict of capital murder. And I say to you, ladies and gentlemen of the jury, that there's not enough evidence in this case to convict a human being of capital murder. There may be enough to convict someone of one of the lesser included offenses, but, not capital murder.

"... And I say to you that when you go back into that jury room, you need to go over all of the evidence and ask the question, was capital murder proved, beyond a reasonable doubt and to a moral certainty. And if it wasn't, you must acquit of capital murder.

"... And I further say to you, ladies and gentlemen of the jury, that the State did not meet its burden for the offense of capital murder."

(Record in CR-92-0958, R. 3100-06.) Clearly, Travis's trial counsel

argued felony murder to the jury. Thus, Travis's claim to the contrary is

without merit.

To the extent that Travis's claim focuses on the way his counsel

presented the felony-murder argument to the jury, that claim is also 53 CR-18-0973

without merit. This Court has explained that " '[c]losing argument is an

area where trial strategy is most evident,' " Clark v. State, 196 So. 3d 285,

315 (Ala. Crim. App. 2015) (quoting Flemming v. State, 949 S.W.2d 876,

881 (Tex. Ct. App. 1997), and that " '[m]atters of trial tactics and trial

strategy are rarely interfered with or second-guessed on appeal.' " Clark,

196 So. 3d at 316 (quoting Arthur v. State, 711 So. 2d 1031, 1089 (Ala.

Crim. App. 1996), aff'd, 711 So. 2d 1097 (Ala. 1997)). So, " '[w]ithout some

explanation as to why counsel acted as he did, we presume that his

actions were the product of an overall strategic plan.' " Washington v.

State, 95 So. 3d 26, 54 (Ala. Crim. App. 2012) (quoting Tong v. State, 25

S.W.3d 707, 714 (Tex. Crim. App. 2000)).

During the evidentiary hearing on his Rule 32 petition, Travis

asked Elbrecht the following:

"[Travis's Rule 32 counsel]: Do you recall presenting to the jury that you wanted them to convict him, at most, of felony murder?

"[Elbrecht]: I may have.

"[Travis's Rule 32 counsel]: Okay. Let's look at that. That's R3101. So this is you speaking at closing argument.

" 'Okay. And you say, if you find him guilty of felony murder, your service in this case is over'; and then later on, you say, 'at most, the State has proved felony murder.' 54 CR-18-0973

"[Elbrecht]: Okay.

"[Travis's Rule 32 counsel]: Okay. And sitting here today, you don't recollect that being a conscious decision that you made?

"[Elbrecht]: I -- I just don't recall my final -- final arguments to the jury.

"[Travis's Rule 32 counsel]: Okay. Did you understand that with respect to felony murder, the difference is intent?

"[Elbrecht]: I thought I had written some notes about that. I thought I did.

"[Travis's Rule 32 counsel]: It's okay. So is it fair to say that whatever is in the record regarding --

"[Elbrecht]: What's in the record is in the record.

"[Travis's Rule 32 counsel]: Yeah. And whatever evidence you put in to try to demonstrate that there was a lack of intent here on the part of Mr. Travis is in the record?

"[Elbrecht]: Yeah. Whatever is in the record is in the record.

"[Travis's Rule 32 counsel]: And you don't remember anything specific that you were thinking about, in connection with the defense of this case, to try to affirmatively demonstrate there was a lack of intent?

"[Travis's Rule 32 counsel]: I know. I have to ask the question.

55 CR-18-0973

"[Elbrecht]: Sure.

"[Travis's Rule 32 counsel]: Whatever you did is in the record?

"[Elbrecht]: Pretty much so. Yes, ma'am."

(Evid Hrg. Oct. 2018, R. 323-24.) So, although Travis asked Elbrecht

general questions about the felony-murder argument he made to the jury

and although Elbrecht said he could not remember the specific

arguments he made, Travis did not ask Elbrecht any questions about why

he did not "explain" -- as Travis puts it -- felony murder to the jury.

"When a record is silent as to the reasons for an attorney's actions we

must presume that counsel's conduct was reasonable." Hooks v. State,

21 So. 3d 772, 793 (Ala. Crim. App. 2008).

But, even if we agreed with Travis that Elbrecht should have

explained in greater detail to the jury the concept of felony murder,

Travis's claim still fails because he did not show how he was prejudiced

by Elbrecht's failure to explain the offense of felony murder to the jury.

Indeed, as set out above, Travis's trial counsel did tell the jury that, at

most, Travis was guilty of felony murder. Although his trial counsel did

not explain in detail the elements of felony murder, the circuit court

provided that detail to the jury when it charged them on felony murder 56 CR-18-0973

as a lesser-included offense of capital murder. (Record in CR-92-0958, R.

3165-70.) " 'Jurors are presumed to follow, not disregard, the trial court's

instructions.' " DeBlase v. State, 294 So. 3d 154, 252 (Ala. Crim. App.

2018) (quoting Brooks v. State, 973 So. 2d 380, 409 (Ala. Crim. App.

2007)). In other words, despite trial counsels' failure to explain in greater

detail the elements of felony murder, the jury was charged on that lesser-

included offense and, thus, was well aware of what constitutes felony

murder when it deliberated in Travis's case.

Because Travis failed to satisfy his burden of proof as to this claim,

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

I.D.

Travis next argues that his trial counsel were ineffective because,

he says, his counsel "failed to object to State theories and cross examine

State witnesses." (Travis's brief, pp. 59-61.) The totality of Travis's

argument on appeal is as follows:

"During the State's opening and closing, the district attorney told the jury that Travis was a brutal killer who enjoyed the murder and the aftermath. The State's opening and closing were highly inflammatory, and painted Travis as a psychopath who 'had fun' murdering the victim and arranging the crime scene. (R. 3114.) The district attorney called the death a 'great celebration . . . Killed her on her birthday.' (R. 3115: 5-18.) He later remarked that Travis and 57 CR-18-0973

Hall 'had a big time while they did it. Had fun while they did it . . . Look at the pictures and see the destruction of the house. You can remember the video tape.' (R 3114: 14-19.) Lead counsel remained silent and did not object to any of this speculation, though the prejudicial nature of these statements is obvious.

"Similarly, during his closing argument at the guilt phase, the Assistant District Attorney invited the jury to speculate about what Travis was doing in the car the day after the crime. (R. 3085.) Despite the clearly objectionable nature of this invitation to speculate, defense counsel did not object. Nor did counsel ever object to, or rebut, the State's argument to the jury that Travis stole items from the victim's home -- despite the absence of any evidence of that fact. (R. 2814, 2973.) There was no physical evidence linking Travis to the interior of Ms. Haskew's house, nor was there any evidence of his footprints outside the house."

(Travis's brief, pp. 59-61.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective for failing "to protect [his] rights at trial" (C. 2023), in part,

because, he said, his counsel failed "to object to the State's prejudicial

remarks during argument," which included arguments in which the State

"invited the jury to speculate about what Mr. Travis was doing in the car

the day after the crime" and "classified the killing as a 'great celebration.

Killed her on her birthday' " (C. 2024). The circuit court gave Travis an

opportunity to prove this claim at the evidentiary hearing, and it gave

58 CR-18-0973

Travis an opportunity to file a post-hearing brief to show how he proved

this claim at the hearing.

In his post-hearing brief, however, Travis modified his claim of

ineffective assistance of counsel, alleging that his counsel were ineffective

"because [they] failed to object to State Theories and Cross Examine

State Witnesses." (C. 2499.) In addition to changing his claim of

ineffective assistance of counsel in his post-hearing brief, Travis also

added new factual allegations as to why his counsel were ineffective. (C.

2499-2500.) To the extent Travis raised a new claim of ineffective

assistance of counsel in his post-hearing brief or adds new factual

allegations to support the claim of ineffective assistance of counsel that

he raised in his fifth amended petition, that new claim and those new

factual allegations are not properly before this Court for appellate review.

To the extent that Travis argues on appeal that the circuit court erred

when it denied the claim he raised in his fifth amended petition regarding

prejudicial remarks by the State during opening and closing arguments,

Travis's argument does not satisfy Rule 28(a)(10), Ala. R. App. P.

Rule 28(a)(10), Ala. R. App. P., requires, in relevant part, that an

argument in a brief include "the contentions of the appellant/petitioner

59 CR-18-0973

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." Although Travis reasserts the allegations he raised in his fifth

amended petition, Travis makes no argument on appeal as to why the

circuit court's denial of this claim was incorrect. Nor does he cite any

authority to support his contention that the remarks were improper or

prejudicial. "This Court has held that similar failures of argument do not

comply with Rule 28(a)(10), Ala. R. App. P., and constitute a waiver of

the underlying postconviction claim. See, e.g., Morris v. State, 261 So.

3d 1181 (Ala. Crim. App. 2016); Bryant v. State, 181 So. 3d 1087, 1118-

19 (Ala. Crim. App. 2011); and Taylor v. State, 157 So. 3d 131, 142-45

(Ala. Crim. App. 2010)." Woodward v. State, 276 So. 3d 713, 746 (Ala.

Crim. App. 2018). Accordingly, Travis is not entitled to any relief on this

I.E.

Travis argues that his "trial counsel were ineffective because they

failed to address the issue of satanism." (Travis's brief, pp. 61-63.)

According to Travis, his trial counsel filed a motion in limine to exclude

references to Satanism at Travis's trial and the trial court granted that

60 CR-18-0973

motion but "allowed an inflammatory and prejudicial graphic picture and

video of the pentagram and 'Thunderstruck' paintings to be shown to the

jury because trial counsel failed to show that either was related to

Satanism." (Travis's brief, p. 61.) Travis further contends that, if his

counsel had reviewed the handwritten "Satanic bible" the State had

provided counsel in discovery, counsel "would have been able to make a

clear showing that the 'geometric shape' in question was in fact a widely-

recognized Satanic symbol." (Travis's brief, pp. 61-62.) Travis says that,

if his counsel had known this information, "they might have convinced

the trial court that these pictures and the video contained inflammatory

symbols of Satanism," and the pictures and video "may have been

excluded," or they could have "preserve[d] the issue for appeal by

presenting the evidence linking the pentagram to Satanism and asking

the trial court for a ruling." (Travis's brief, p. 62.) Travis did not raise

this specific claim of ineffective assistance of counsel in his Rule 32

petition or in any of the five amendments to his petition. Rather, Travis

presented this claim to the circuit court for the first time in his post-

hearing brief, and, what is more, he never obtained an adverse ruling on

61 CR-18-0973

this claim. Consequently, as explained above, Travis's argument on

appeal is not properly before this Court.

I.F.

Travis next argues that his "trial counsel were ineffective in the

guilt phase closing argument." (Travis's brief, pp. 63-66.) According to

Travis, his counsels' closing argument was deficient because "it

completely ignored Hall," "even though evidence existed that could have

been marshalled to explain to the jury that Hall had committed the

murder and acted alone"; it "did not define" for the jury the lesser-

included offenses of intentional murder, felony murder, or first-degree

burglary or "explain the State's burden to prove all elements of these

offenses"; it "failed to provide a framework for the jury to use to analyze

these different alternative theories of liability as compared to the

evidence that had been presented at trial"; it "praise[d] the prosecutor";

and it was used to "distance [counsel] from Travis." (Travis's brief, pp.

64-65.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective because they "failed to present a coherent theory of defense to

the jury." (C. 2025.) In making this allegation, Travis claimed that his

62 CR-18-0973

counsels' closing argument "made no mention of the alternative view that

Steven Hall alone shot and killed Clarene Haskew, with no aid from Mr.

Travis"; "failed to explain to the jury that the prosecution was relying

solely on circumstantial evidence"; did not "explain felony murder to the

jury"; "failed to demonstrate to the jury that the State did not present

sufficient evidence to prove intent to kill, an essential element of first

degree murder"; "failed to make an effective presentation of a defense

theory to the jury"; "failed to challenge the State's version of the sequence

of events and to adequately explain the State's failure to in any way prove

the necessary elements of first degree murder, particularly and intent to

kill"; and "failed to provide the jury with a framework for understanding

how the State's evidence was wholly insufficient to convict Mr. Travis of

murder." (C. 2026-27.) The circuit court gave Travis an opportunity to

prove this claim of ineffective assistance of counsel at the evidentiary

hearing, and it gave him an opportunity to file a post-hearing brief to

show how he proved this claim.

In his post-hearing brief, however, Travis modified the claim he

raised in his fifth amended petition, arguing that his counsel were

ineffective "in his guilt phase closing statement." (C. 2502-05.) In

63 CR-18-0973

making this modified claim, Travis realleged that his counsel failed to

argue to the jury that Hall had acted alone and failed to explain felony

murder. (C. 2503-04.) Travis also added new factual allegations that his

counsel failed to explain intentional murder and first-degree burglary,

used the closing argument to "praise the prosecutor," and used the closing

argument to "distance himself from Mr. Travis." (C. 2504-05.)

The new factual allegations that Travis raised in his post-hearing

brief as to his counsels' effectiveness during the closing argument are not

properly before this Court because they were not included in either

Travis's Rule 32 petition or in any of the five amendments to his petition,

and they will not be considered. See 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.").

To the extent that Travis argues on appeal that the circuit court

erred when it denied the claim he raised in his fifth amended petition,

Travis's argument is without merit.

64 CR-18-0973

First, Travis's argument that his counsel were ineffective during

the closing argument because they failed to explain felony murder is, as

explained in Part I.C.3. of this opinion, without merit because Travis

failed to ask his trial counsel any questions during the evidentiary

hearing as to why he did not explain to the jury the law of felony murder

in greater detail. Because "[w]hen a record is silent as to the reasons for

an attorney's actions we must presume that counsel's conduct was

reasonable" Hooks, 21 So. 3d at 793, we conclude that Travis's counsels'

performance was reasonable. Regardless, as explained in Part I.C.3. of

this opinion, Travis's claim fails because he did not show how he was

prejudiced by his counsels' failure to explain to the jury in greater detail

the law of felony murder. Indeed, as set out above, Travis's trial counsel

did tell the jury that, at most, Travis was guilty of felony murder.

Although his trial counsel did not explain in detail the elements of felony

murder, the circuit court provided that detail to the jury when it charged

the jury on felony murder as a lesser-included offense of capital murder.

(Record in CR-92-0958, R. 3165-70.) In other words, despite trial

counsel's failure to explain in greater detail the elements of felony

murder, the jury was well aware of what constitutes felony murder and

65 CR-18-0973

Travis's counsel argued to the jury that, at most, felony murder, not

capital murder, was an appropriate verdict when it deliberated in this

case.

As to Travis's claim that his counsel were ineffective for failing to

mention Hall in the closing argument, that claim is also without merit

because, although he asked his trial counsel questions about the State's

theory that Hall and Travis acted in concert when Haskew was murdered

(see, e.g., Evid. Hrg. Oct. 2018, R. 322), Travis did not ask his trial

counsel any questions about his reasoning as to why he did not mention

Hall (or posit the theory that Hall had acted alone) during the closing

argument. Again, " '[i]f the record is silent as to the reasoning behind

counsel's actions, the presumption of effectiveness is sufficient to deny

relief on [an] ineffective assistance of counsel claim.' " Davis v. State, 9

So. 3d 539, 546 (Ala. Crim. App. 2008) (quoting Howard v. State, 239

S.W.3d 359, 367 (Tex. Crim. App. 2007)).

Accordingly, the circuit court did not err when it denied Travis's

claim of ineffective assistance of counsel.

I.G.

66 CR-18-0973

Finally, Travis argues that "a reasonable probability exists that

[he] would not have been convicted of capital murder had trial counsel

performed effectively." (Travis's brief, pp. 66-70.) According to Travis,

his counsels' "lack of preparation, effort, and investigation made it

impossible for them to make strategic decisions as to how to present

Travis's case during the guilt phase" and his counsel "could have used the

evidence available to argue that, at the time Hall committed the crime,

Travis was attempting to hotwire a car." (Travis's brief, p. 66.) Travis

further argues that a "reasonable investigation and review would have

allowed trial counsel to demonstrate that the only evidence against

Travis in this case was that he was present near the crime scene -- which

is not enough to convict him of capital murder on a complicity theory."

(Travis's brief, pp. 66-67.) Travis also argues that his counsel failed to

investigate and consider evidence that linked Hall "to the vandalism

around the murder scene, the evidence distancing Travis from the

murder weapon, and the lack of evidence linking Travis to the scene, it is

likely that the result of the trial would have been different." (Travis's

brief, p. 67.)

67 CR-18-0973

In his fifth amended petition, Travis alleged that his counsels'

"deficient performance during the guilt stage prejudiced [him] and

violated his constitutional rights." (C. 2026.) The totality of Travis's

claim in his petition was as follows:

"Defense Counsel's inadequate and insufficient performance was prejudicial to Mr. Travis's right to a fair trial and a reliable verdict. Had they performed their duties as was constitutionally required, there is a reasonable likelihood that Mr. Travis would not have been convicted of capital murder and would likely not have been convicted at all. Alternatively, at most, Mr. Travis would have been convicted of felony murder, a crime for which the death penalty is not available. Defense Counsel's failure to develop an affirmative defense strategy and present a coherent defense confused the jury. Defense Counsel failed to show that the State utterly lacked physical evidence of Mr. Travis's involvement in the murder and that the State was incapable of showing what actually went on in the victim's home on the night of the crime. An effective presentation about the gaps in the State's evidence would have created a reasonable doubt as to whether Mr. Travis was guilty of capital murder and/or whether Mr. Travis should have been convicted of a lesser offense."

(C. 2026-27.) The circuit court gave Travis an opportunity to prove this

claim at an evidentiary hearing, and it gave Travis the opportunity to file

a post-hearing brief to explain how he proved this claim.

In his post-hearing brief, however, Travis modified his guilt-phase

cumulative-effect claim, arguing that "[a] reasonable probability exists

that Travis would not have been convicted of capital murder had trial 68 CR-18-0973

counsel performed effectively." (C. 2505.) In modifying his claim, Travis

added new factual allegations as to why, he says, his counsels' guilt-

phase performance prejudiced him, including their "lack of preparation,

effort, and investigation" and their failure to use "the evidence available

to them to argue that, at the time Hall committed the crime, Mr. Travis

was attempting to hotwire a car using the screwdriver he had, as

corroborated by the damage found to the steering column of Ms. Haskew's

pickup truck." (C. 2505.)

The circuit court denied the claim raised in Travis's fifth amended

petition, finding that "a Rule 32 circuit court is not required to consider

the cumulative effect of claims of ineffective assistance of counsel" and,

alternatively, it had "thoroughly reviewed each of Travis's ineffective-

assistance claims and concluded they are without merit." (C. 4114-15.)

To the extent that Travis raised new factual allegations in his post-

hearing brief to support the cumulative-effect claim that he alleged in his

fifth amended petition, those new factual allegations are not properly

before this Court because they were not included in either Travis's Rule

32 petition or in any of the five amendments to his petition. See Bryant,

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

69 CR-18-0973

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.").

To the extent that Travis reasserts on appeal the cumulative-effect

claim that he raised in his fifth amended petition, that claim is without

merit. As the circuit court correctly recognized in its order denying

Travis's claim:

" 'Alabama does not recognize a "cumulative effect" analysis for ineffective-assistance-of-counsel claims.' Carruth v. State, 165 So. 3d 627, 651 (Ala. Crim. App. 2014). We have repeatedly declined similar requests from petitioners to do so. See, e.g., Mashburn v. State, 148 So. 3d 1094, 1118 (Ala. Crim. App. 2013); Washington, 95 So. 3d at 58. And because [Travis] has shown no deficient performance [as to his guilt- phase claims of ineffective assistance of counsel], there is no opportunity for this Court to engage in a cumulative-effect analysis."

Lewis v. State, 333 So. 3d 970, 1016 (Ala. Crim. App. 2020) (opinion on

return to remand).

To the extent that Travis argues that his counsel were ineffective

because they failed to undertake a reasonable investigation and review

of the evidence that would show that Hall acted alone and that distanced

Travis from the crime scene and to the extent that claim was raised in 70 CR-18-0973

Travis's fifth amended petition, Travis's argument is without merit. This

Court has explained:

" 'The 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.'

"Strickland, 466 U.S. at 691."

Washington v. State, 95 So. 3d 26, 52 (Ala. Crim. App. 2012).

At the evidentiary hearing, Travis called one of his trial counsel,

Robert King, to testify about his role in Travis's case. During the State's

cross-examination of King, the State asked him whether Travis had made

inculpatory statements to him. (Evid. Hrg. Oct 2018, R. 561.) King

responded as follows:

"He gave statements that indicated he may have -- that may be inculpatory at least to some crimes. Okay? I mean. I'll put it that way.

"I think -- again, I mean, I'm -- y'all are talking about the legal issue. I'm talking about the ethical issue. So I don't want to say something I'm not supposed to say. I believe I can say -- because I think this is what I told y'all -- everything that [Travis] told us that would have given us a credible argument to fight the charges was developed in the trial. 71 CR-18-0973

"So if you see something in the transcript that we 're arguing about -- for example, who is the person who fired the gun? Okay. We questioned witnesses about that, tried to introduce evidence about that. If he had given other exculpatory things that we could have raised, we would have raised them. Okay? So I don't really want to say specifically, yes, he said this, yes, he said that. But, I mean, if it's not in that transcript, then we had no -- not just from [Travis]. We had no basis from anything to argue that he was in Georgia, for example, or, you know, he was passed out in the car somewhere or any of those kinds of things.

"Again, if there had been, we would have pursued them, possibly by having him testify. But even without that, by trying to introduce evidence through other witnesses, the issues regarding -- you know, some things are still clear even 25 years ago. Simon Benson, the investigator in this case, made statements to us that not only -- you know, that he believed Mr. Hall was the shooter. We tried to get that into evidence. The judge wouldn't let it into evidence. He made statements to us that he saw one of these two -- and it wasn't Mr. Travis -- draw a pentagram, I think it was, one of the Satanic symbols during a statement. We tried to question him about those things.

"There was nothing provided by Mr. Travis or in our investigation that gave us anything to argue about to try to rebut the State's case except what we offered at trial. I mean, I'm not trying to avoid your question. But I think that answers it without me having to say specifically what he said."

(Evid. Hrg. Oct. 2018, R. 562-65.) Thereafter, the following exchange

occurred:

72 CR-18-0973

"[The State]: Well, I'm going to ask the specific question anyway.

"[King]: Okay. If the judge tells me I can say it, it's fine. I mean --

"[The State]: Wayne admitted to you his presence inside the house, didn't he?

"….

"[King]: The answer is, yes. It's also in the statements given to Mr. McGraw, that y'all already have in evidence.

"[The State]: And, in fact, he also told the same thing to Dr. Atkins; is that correct?

"[King]: That's my -- I was not there when he was interviewed by Dr. Atkins, but that's my understanding from Dr. Atkins'[s] report.

"[The State]: … Did Mr. Travis tell Dr. Atkins that they should have dumped the body in the river because no body, no crime?

"[King]: Again, I was not present when Mr. Travis met with Dr. Atkins. Dr. Atkins told me that Mr. Travis said that to him --"

(Evid. Hrg. Oct. 2018, R. 565-66.)

In other words, although Travis's Rule 32 counsel alleged that his

trial counsel were ineffective for failing to investigate and review

evidence that would distance Travis from the crime scene and show that 73 CR-18-0973

Hall acted alone, Travis's trial counsel were told by Travis that he was

inside Haskew's house. Additionally, Travis's trial counsel were aware

that Travis told law enforcement that he was in Haskew's house. What

is more, Travis's counsel were told by Dr. Atkins that Travis had

expressed to him that he was inside the house and had expressed regret

that he and Hall did not dispose of Haskew's body. Based on Travis's

own statements to his counsel, to law enforcement, and to Dr. Atkins,

Travis's trial counsels' approach during the guilt phase of his trial to hold

the State to its burden of proving that Travis was guilty of capital murder

when there was no direct evidence that Travis killed Haskew was

reasonable.

Accordingly, Travis is not entitled to any relief on this claim.

II. Penalty-Phase Claims of Ineffective Assistance of Counsel

Travis also argues that his counsel were ineffective during the

penalty phase of his trial. Because Travis's penalty-phase claims of

ineffective assistance of counsel include allegations that his counsel

failed to adequately prepare a mitigation case and failed to present

certain mitigating evidence, we first set out what evidence his trial

counsel presented during the penalty phase of his trial.

74 CR-18-0973

During the penalty phase of his trial, Travis's counsel called 12

witnesses to testify as to mitigation: Cary Travis, Chestine Findley,

Marian Travis, Phyllis Davis, Wayne Stovall, Lorraine Stovall, Gary

Dailey, Jeff Bottom, Tim Carter, Tommy Bridges, Wanda Lou Caldwell,

and Lisa Bartlett. Travis's trial counsel also submitted, by stipulation, a

portion of Dr. Patrick Bruce Atkins's report that showed that Travis had

as an "Axis I" diagnosis of "a mental illness in the form of polysubstance

dependency with gasoline inhalation and marijuana abuse and previous

history of using other substances, such as amphetamines, barbiturates,

and acid in the past," and that, because of Travis's "extensive history of

child abuse in the past," that Travis "may likely have post-traumatic

stress disorder"; an "Axis II" diagnosis of "anti-social personality

disorder"; and an "Axis III" diagnosis that he could not "exclude an

organic mental disorder, secondary to chronic inhalation of gasoline" and

noted that "more formal neuropsychological testing may be beneficial"

and that "an MRI of the brain may be of benefit in determining whether

or not there is any underlying organic brain damage." (Record in CR-92-

0958, C. 1272.)

75 CR-18-0973

The testimony of these 12 witnesses tended to show the following:

Cary and his wife, Marion Travis, adopted Travis in 1976 when Travis

was six years old and they did not know anything about Travis's

upbringing before they adopted him. (Record in CR-92-0958, R. 3229-32.)

Cary said that they did not know that Travis had biological sisters, but

Travis had talked about them and had told them that he was promised

that he would be able to stay with his sisters. (Record in CR-92-0958, R.

3234.) Cary said that Travis was not stable when he came into their

house and that he was "emotionally disturbed because he had been

separated from his family, his sisters." (Record in CR-92-0958, R. 3235.)

Cary said that the Department of Human Resources ("DHR") told them

that Travis could not have contact with his biological family. (Record in

CR-92-0958, R. 3235.) Cary also said that Travis had difficulty sleeping

and refused to sleep in his own room; instead, Travis would only sleep on

a "roll-a-way" bed at the foot of Cary and Marion's bed and Travis slept

on that bed for four years. (Record in CR-92-0958, R. 3236-37.) Cary said

that Travis also wet the bed and was on medication to help prevent bed

wetting, but Marion (who was a registered nurse) helped Travis alleviate

76 CR-18-0973

the bed-wetting problem without having to rely on the medication.

(Record in CR-92-0958, R. 3237, 3259.)

Cary said that they did not learn about what happened in Travis's

upbringing before he was adopted until Travis was about 10 years old.

(Record in CR-92-0958, R. 3238.) Around that time, Travis went to

undergo a mental-health evaluation and he went to "St. Mary's home ...

and stayed a period of time." (Record in CR-92-0958, R. 3239.) Cary said

that Travis talked to him once about his early childhood and about how

he was attached to his biological sisters and that he did not understand

why Cary and Marian had not adopted his siblings. Cary said that Travis

"talked about numerous situations in the family where the mother had

been beaten about the face, blood coming down her face, wearing a

leather jacket." (Record in CR-92-0958, R. 3240.) Marian said that she

"couldn't help but love [Travis]." (Record in CR-92-0958, R. 3263.)

Marian also said that she did not view Travis as a violent person and that

she was not afraid of him. (Record in CR-92-0958, R. 3266-67.)

Chestine Findley, a child-welfare worker for DHR, helped finalize

Travis's adoption and helped with Travis after the adoption "[b]ecause

there [were] some problems." (Record in CR-92-0958, R. 3247.) Findley

77 CR-18-0973

said that, after the adoption, Travis had some emotional difficulties and

that she tried to help Cary, Marion, and Travis by placing Travis in St.

Mary's home where he could receive psychological counseling. (Record in

CR-92-0958, R. 3248.) Findley said that they also placed Travis in the

Eufaula Adolescent Adjustment Center. (Record in CR-92-0958, R.

3249.) In her view, Travis's adoption was an "adoption that went bad."

(Record in CR-92-0958, R. 3249.) Findley said that Travis had an

emotionally troubled childhood. (Record in CR-92-0958, R. 3254.)

Phyllis Davis, who was Travis's first-grade teacher and who drove

Travis to school on occasion, explained that she knew from Cary and

Marion that Travis came from a "broken home," and she surmised that

Travis would have emotional-stability issues. (Record in CR-92-0958, R.

3270.) Davis explained that Travis had a hard time sitting still and that,

at times, "he would have outbursts of reaction to a situation that [she]

did not consider to be normal." (Record in CR-92-0958, R. 3270.) Travis

struggled in school and "started in the first grade with about a C-D

average and progressed relatively downward through the fifth grade to

where he was making a lot more D's and F's." (Record in CR-92-0958, R.

3337.) Davis said that, sometimes, Travis would come home with her

78 CR-18-0973

after school and that he "absolutely adored [her] daughter" and that

Travis and her daughter "bonded." (Record in CR-92-0958, R. 3272.)

Davis said that she thought that Travis "loved" them and they, "in turn,

loved him." (Record in CR-92-0958, R. 3272.) Davis said that the

Travises are good people. (Record in CR-92-0958, R. 3272.)

Wayne Stovall and Lorraine Stovall, who served as foster parents

to Travis and his biological sisters before Travis was adopted, testified

that Tim Carter, a DHR worker, brought Travis and his sisters to them

and that the children "were in poor condition." (Record in CR-92-0958,

R. 3281.) Wayne said that the children had a lot of "bruises, lot of mental

problems, anxious, untrustworthy." (Record in CR-92-0958, R. 3281.)

Lorraine said that the children had numerous signs of physical abuse,

including bruises and scars. (Record in CR-92-0958, R. 3286.) Wayne

also said that the children said that they had been "neglected by their

mother," that their mother would lock them "in cars while [she] went

inside bars," and that they had "witnessed shootings, beatings." (Record

in CR-92-0958, R. 3281-82.) Wayne said that Travis was five years old

when he came to their house, but he did not act like a normal five-year-

old. Specifically, Wayne said that Travis was "very distrustful"; he "was

79 CR-18-0973

afraid of people, afraid of what might happen to him, addicted to sugar,

constantly wet his pants and the bed, nosebleeds." (Record in CR-92-

0958, R. 3282.) Wayne said that Travis was able to ride a bicycle "better

than a ten year old" and that he was "capable, but he was just -- just

neglected; he was left to fend for himself." (Record in CR-92-0958, R.

3282.)

Lorraine explained that, after six weeks, Travis's sisters were taken

to a different foster home, and she explained that "it was emotional, very

emotional." (Record in CR-92-0958, R. 3288.) But they were told that

DHR was "going to try to keep [the sisters] close." (Record in CR-92-0958,

R. 3288.) In total, Travis lived with the Stovalls for about 18 months.

(Record in CR-92-0958, R. 3288.)

Gary Dailey, a law-enforcement officer with the Limestone County

Sheriff's Department, testified that he knew Travis's biological mother,

Myrtle Bartlett, and that he "got in an incident where [he] had a shoot-

out with a gentleman [Jackie Crabtree] that was dating her." (Record in

CR-92-0958, R. 3292.) Dailey said that Crabtree was killed during that

altercation. (Record in CR-92-0958, R. 3293.) Dailey said that Crabtree

was a violent man. (Record in CR-92-0958, R. 3294.)

80 CR-18-0973

Jeff Bottom, a former law enforcement officer with the Limestone

County Sheriff's Department, said that he first encountered Travis's

biological family when he worked at his family's store in Ardmore.

(Record in CR-9958, R. 3297.) Bottom said that, when he worked as a

police officer, he recalled "human services" calls that involved Travis's

biological family -- specifically, Bottom recalled a time when Travis's

biological mother left her children alone in the backseat of a car while

she went into a tavern. (Record in CR-92-0958, R. 3297.)

Tim Carter, a social worker with DHR, said that he did an extensive

report on Travis's biological family, which served as a catalyst for

removing Travis and his sisters from their biological mother. (Record in

CR-92-0958, R. 3300.) Carter said that they learned of the issues with

Travis's biological family from "complaints from the community."

(Record in CR-92-0958, R. 3312.) According to Carter, there were

concerns about the children being exposed to fighting and drunken

parties in the home. (Record in CR-92-0958, R. 3312.) There were also

concerns that the eldest daughter -- who was 15 years old at the time --

at the behest of Travis's biological mother "was providing sexual services

to different men that came to the home." (Record in CR-92-0958, R.

81 CR-18-0973

3312.) In December 1970, DHR received a report that Travis's biological

parents were subjecting their children to "moral and physical neglect."

(Record in CR-92-0958, R. 3313.) Carter said that DHR had observed the

children looking "dirty and appearing malnourished." (Record in CR-92-

0958, R. 3314.) Carter said that Travis's biological parents had been

arrested for public drunkenness and for driving while intoxicated, and

that law enforcement had been called out to their home "periodically to

break up fights and parties involving several drunks." (Record in CR-92-

0958, R. 3314.) Carter said that Travis's childhood home was "in bad

condition" and that there were reports that Travis's biological mother

would leave the children at home alone while she and Crabtree would

ride around drunk. (Record in CR-92-0958, R. 3315.) Carter said that

there were also reports that Travis's biological mother would leave the

children unattended for days at a time, and that she allowed her 13-year-

old daughter to date older men. (Record in CR-92-0958, R. 3316.) Carter

testified that, at some point, he went to visit the home and found the

family "residing in a burned out shell of a building which had served as

a small school building in the past." (Record in CR-92-0958, R. 3317.)

Carter said that later he visited Travis's sister in the hospital after she

82 CR-18-0973

suffered burns from having "thrown a jug of kerosene in the fire and an

explosion had caused some burns." (Record in CR-92-0958, R. 3317.)

Carter further testified that the children -- including Travis -- had

witnessed their mother being raped and that they had been subjected to

physical violence. (Record in CR-92-0958, R. 3319.) The children were

also left unattended in a car for three hours when the temperatures were

in the 90s while their biological mother was inside a tavern. (Record in

CR-92-0958, R. 3320.) At that point, the children were removed from

their biological mother and placed into foster care. (Record in CR-92-

0958, R. 3320.) Carter said that Travis's biological home was one of the

worst he had seen in his career. (Record in CR-92-0958, R. 3329-30.)

Wanda Lou Caldwell, Travis's biological sister, said that she last

saw Travis "about three weeks after they were taken away" from their

mother and that, at that time, Travis "was approximately four years old."

(Record in CR-92-0958, R. 3349.) Caldwell said that she was 16 or 17

years old the last time she saw Travis. (Record in CR-92-0958, R. 3350.)

Caldwell said that her father

"was an alcoholic, still is an alcoholic. And we survived the best way we could. We had power maybe one month out of a year. And my dad would have these men come in to have

83 CR-18-0973

parties with him and he would try to get my mother to get money from them to turn our power on."

(Record in CR-92-0958, R. 3351-52.) Caldwell said that she got a job

when she turned 13 years old, but she did not leave the house because

Travis "was just a little bitty baby and [she] had three sisters. And [she]

was afraid to leave them." (Record in CR-92-0958, R. 3352.) Caldwell

said that her mother and father separated, and her mother started dating

Jackie Crabtree. Caldwell said of Crabtree:

"There wasn't but one of us that he didn't beat. He claimed that [Travis] was his favorite and the way he showed him he would -- when we got up in the morning we had an[] old wood heater and he would grab [Travis] up and he would tickle until he cried and he would either mess his britches or something and Jackie would grab him by the arm and sling him around and whip him. And we didn't have running water. And we had a goat that had this big tub that he drank out of and it would be ice on it and that's where [Travis] was put."

(Record in CR-92-0958, R. 3353-54.) Caldwell said that, regardless of the

time of year, "a little pair of girls panties is all that [Travis] wore."

(Record in CR-92-0958, R. 3354.) Caldwell said that they had no inside

bathroom, no indoor plumbing, and no electricity where they lived.

Caldwell also explained that there was violence in the home every

night. She said that either her mother and Crabtree would fight or "if

[Crabtree] wasn't hitting [her] mother, he was hitting [Caldwell] and 84 CR-18-0973

[Travis] was trying to pull him off and he would take and throw him up

against the wall." (Record in CR-92-0958, R. 3355.)

In addition to the violence in their home, Caldwell explained that

the children witnessed deviant sexual activity. For example, Caldwell

explained that Crabtree's uncles lived next to them and between the two

houses

"there was a little pen ... and it was this goat they kept in it. And every time he would get drunk he would go out there and he would get that goat and he would put it on the well house and he would have sex with that goat where we would see it."

(Record in CR-92-0958, R. 3358.) Caldwell also said that Travis

witnessed one of the uncles attempt to have sex with a chicken. (Record

in CR-92-0958, R. 3360.)

Caldwell said that her mother and Crabtree would leave the

children alone and that she would take her siblings "to the Red Barn and

feed them." (Record in CR-92-0958, R. 3360.) Caldwell said that they

"dug in the dumpster in Huntsville behind Krispy Kreme and ate donuts

because they were hungry." (Record in CR-92-0958, R. 3361.)

Lisa Bartlett, another one of Travis's biological sisters, also

discussed Travis's early childhood. Bartlett explained that Crabtree

85 CR-18-0973

"mistreated all of us, more especially [Travis]." (Record in CR-92-0958,

R. 3366.) Bartlett said:

"There was unbearable spankings, beatings. There was, all the time, parties going on, shootings. This man that my mother lived with, alcoholic, drank every day, spent his money on -- every dime, just to get a drink. There were time when [Travis] was just a baby, [Travis] would wet his pants like a child does. And punishment was put him in a cold tub, even if it was winter time and set him outside. There was times when the parties were being thrown if we -- if we kids were to be seen, you know, we were supposed to be out of sight. If we weren't being watched, didn't matter. Be out of sight. Don't be around us, we're having a party. There was times if we didn't listen we were pushed under the bed with a broom handle, beat with a broom handle."

(Record in CR-92-0958, R. 3366.) Bartlett said that, when they were

removed from their home, Tim Carter -- the social worker -- told them

that they were going to keep the siblings together, but "they took [Travis]

away from us." (Record in CR-92-0958, R. 3367-68.)

After hearing this testimony and weighing the aggravating and

mitigating circumstances, the jury, by a vote of 11 to 1, recommended

that Travis be sentenced to death. (Record in CR-92-0958, C. 374.)

Mindful of this context, we now turn to Travis's penalty-phase

claims of ineffective assistance of counsel.

II.A.

86 CR-18-0973

Travis argues that his trial counsel were ineffective during the

penalty phase of his trial because they "failed to adequately investigate

and prepare for the penalty phase, and thus failed to make a compelling

mitigation case." (Travis's brief, pp. 72-89.) Specifically, Travis claims

that his counsel were ineffective because they "failed to obtain a timely

psychological evaluation" (Travis's brief, p. 73); they "presented a

contradictory and confused mitigation case" (Travis's brief, p. 78); and

they "fail[ed] to obtain a mitigation expert" (Travis's brief, p. 85). We

address each argument in turn.

II.A.1.

Travis first argues that his counsel were ineffective because they

"failed to obtain a timely psychological evaluation." (Travis's brief, p. 73.)

According to Travis, although the trial court granted his trial counsel

funds to have him undergo a psychiatric evaluation in April 1992,

Travis's trial counsel "inexplicably did not have the psychiatric

examination performed on Travis until February 3, 1993, ... just weeks

before trial." (Travis's brief, p. 74.) Travis says that this "delay proved

costly" because Dr. Atkins recommended that Travis "be examined

further to identify whether he suffered from 'organic brain damage' and

87 CR-18-0973

ordered an MRI of Travis's brain" and "trial counsel's failure to act timely

left them unable to implement the psychiatrist's recommendations."

(Travis's brief, p. 74.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective for "failing to procure necessary psychological and

neuropsychological expert assistance." (C. 2015.) In making this

allegation, Travis raised three specific claims: (1) that his trial counsel

"failed to obtain a full psychiatric evaluation of [him] prior to trial even

though they were expressly directed by the trial court to have one

completed" (C. 2015 (emphasis omitted)); (2) that his trial counsel "failed

to present effectively even the limited results of Dr. Atkins'[s]

examination by failing to call him to testify at trial" (C. 2016); and (3)

that his trial counsel "failed to pursue neuropsychological testing

necessary to Mr. Travis's defense" and that "Dr. Atkins'[s] report served

to place counsel on notice of potentially material defense claims

pertaining to Mr. Travis's culpability." (C. 2017-18.) The circuit court

gave Travis an opportunity to prove all three allegations at an

evidentiary hearing, and, after the hearing, it denied each claim.

88 CR-18-0973

Specifically, the circuit court found that Travis's claim that his trial

counsel failed to have Travis undergo a psychiatric evaluation was clearly

refuted by the record on direct appeal (C. 4085-86); that Travis's claim

that his trial counsel failed to present the results of Dr. Atkins's

evaluation was without merit (C. 4086-91); and that Travis's claim that

his trial counsel failed to obtain neuropsychological testing was without

merit. (C. 4091-94.)

Travis's argument on appeal appears to concern only the circuit

court's denial of his third claim -- i.e., that his counsel were ineffective

for failing to obtain neuropsychological testing. In finding that claim to

be without merit, the circuit court explained, in part:

"Travis called Dr. Michael Brook, a neuropsychologist, in an attempt to support this claim. In rebuttal, the State called Dr. Glen King, an expert in clinical and forensic psychology with significant expertise and experience in neuropsychological assessments. This Court had the opportunity to observe Drs. Brook and King when they testified and listened carefully to their testimony. For the following reasons, this Court credits the testimony of Dr. King and accordingly denies Travis's claim.

"Although the Court credits Dr. King's testimony, the Court does credit Dr. Brook's testimony in limited part. First, the Court credits his testimony that his neuropsychological assessment of Travis reveals that his cognitive functions were within normal limits or above compared to other people of his demographic background, with the exception that he does not 89 CR-18-0973

learn and recall information as efficiently as other people his age. Second, this Court credits his testimony that Travis's brain MRI images were normal.

"This Court now will resolve the points of contention between Drs. Brook and King.

"First, this Court finds that Travis generated an invalid profile on the versions of the MMPI that Drs. Brook and King administered to him, and this Court credits Dr. King's testimony that Travis's performance on those test instruments reveals that he was exaggerating mental-health symptoms and faked the results.

"Dr. Brook refused to concede as much, even though Travis generated an invalid profile on the MMPI that he administered 'due to atypically high endorsement of infrequent responses that are uncommon even in individuals with genuine severe psychopathology.' On one hand, Dr. Brook essentially disregarded the results of the MMPI because it was invalid. The Court finds that Dr. Brook stretched to conclude that Travis answered that questionnaire truthfully. He was able to reach that opinion only by looking at some of the symptoms that Travis endorsed and finding that he endorsed them 'simply due to [the] unique circumstances he's in as opposed to exaggerating or malingering.' Dr. King categorically rejected that approach. This Court credits Dr. King's testimony that Travis was exaggerating mental health symptoms and faked the results on the versions of the MMPI that he and Dr. Brook administered to him.

"Second, perhaps the primary dispute between Drs. King and Brook is whether Travis qualifies for a diagnosis of [post-traumatic stress disorder ('PTSD')]. To begin, this Court finds that Travis has been evaluated by numerous mental health professionals over the course of his life and that Dr. Brook is the only one who has diagnosed him with PTSD. For 90 CR-18-0973

that reason alone, this Court views Dr. Brook's diagnosis with great skepticism.

"When asked how he arrived at his diagnosis of PTSD, Dr. Brook replied, 'So my diagnosis was based on the results of psychometric testing, mainly the TSI-2, my clinical interview, and the review of records.' When asked whether it is possible to diagnose PTSD without administering a test, such as the TSI or MMPI, he conceded, 'I'd say that's -- that's possible.' Nonetheless, Dr. Brook admitted that clinicians commonly diagnose PTSD just based on the interview and without testing.

"In explaining his finding that Travis does not have PTSD, Dr. King persuasively testified as follows:

" 'Well, [PTSD] is an anxiety disorder primarily, and it is manifested by overt signs of agitation, withdrawal, emotional numbing, avoidance of talking about specific incidents that caused the trauma, suspiciousness, startle responses, things of that nature.

" 'When I'm dealing with people who I evaluate clinically, what I'm looking for first is overt evidence of any of those symptoms in my presence. I had spent, like I said, 12 to 14 hours with Mr. Travis. He never showed any of those symptoms. I've sat in court now today for four or five hours. He's shown no evidence of any startle response. He's not agitated.

" '....

" 'And what I observed is that he has no overt symptoms of suspiciousness, startle response, no agitation. He's not been anxious. He's engaged in animated discussions with his counsel and other 91 CR-18-0973

people. When people come into the room, he doesn't show any indications that he is concerned about that. So I've seen no evidence whatsoever now or in the past that he has any of those symptoms.'

"Dr. King administered the MMPI-2 in 2006, and Travis invalidated it by exaggerating symptoms. Dr. King reiterates that there is no evidence that Travis had any PTSD either in 2006 or 2017.

"Having carefully considered the testimony from both experts regarding the question of PTSD, this Court credits Dr. King's conclusion that he finds no evidence that Travis now suffers or ever has suffered from that disorder.

"Third, this Court notes that Dr. Brook went so far as to diagnose Travis as suffering from a phenomenon that he referred to as complex developmental trauma disorder. When asked about his diagnosis of that disorder, Dr. Brook [] testified that it is [PTSD] plus. He conceded that complex developmental trauma disorder is not included as a separate disorder in the DSM-5. When asked whether Travis suffers from that 'disorder,' Dr. King stated there is no such diagnosis.

"Given that there is no diagnosis for 'complex developmental trauma disorder' in the DSM-V, this Court disregards Dr. Brook’s testimony diagnosing him with that 'phenomenon.'

"Notably as well, Dr. Brook stated he could not reliably diagnose Travis's mental status or neuropsychological status in 1991, but nonetheless believes Travis has suffered from PTSD most of his life.

"Because Travis's claim that his trial counsel were ineffective for failing to obtain a neuropsychologist to evaluate 92 CR-18-0973

him is premised on the questionable testimony of Dr. Brook, the Court finds that Travis has failed, to satisfy his burden of showing deficient performance or prejudice under Strickland with regard to this claim. For that reason, this claim is denied under Rule 32.7(d) of the Alabama Rules of Criminal Procedure."

(C. 4091-94.)

In his brief on appeal, Travis maintains that his counsel were

ineffective for failing to obtain a psychological evaluation after they

learned from Dr. Atkins's report that Travis needed further evaluation.

Travis also takes issue with the circuit court's discrediting Dr. Brook's

testimony.

To start, Travis's complaint about the circuit court's weighing Dr.

King's testimony more favorably than Dr. Brook's testimony is without

merit. This Court has explained:

" ' "The resolution of ... factual issue[s] required the trial judge to weigh the credibility of the witnesses. His determination is entitled to great weight on appeal. ... 'When there is conflicting testimony as to a factual matter ..., the question of the credibility of the witnesses is within the sound discretion of the trier of fact. His factual determinations are entitled to great weight and will not be disturbed unless clearly contrary to the evidence.' " ' 93 CR-18-0973

" 'Calhoun v. State, 460 So. 2d 268, 269-70 (Ala. Crim. App. 1984) (quoting State v. Klar, 400 So. 2d 610, 613 (La. 1981)).'

"[Brooks v. State,] 929 So. 2d [491] at 495-96 [(Ala. Crim. App. 2005)]."

Broadnax v. State, 130 So. 3d 1232, 1240-41 (Ala. Crim. App. 2013).

Nothing in the record on appeal shows that the circuit court's decision to

find Dr. King more credible that Dr. Brook was "clearly contrary to the

evidence." Thus, the circuit court's credibility determination in this case

will not be disturbed.

As for Travis's argument that his counsel were ineffective for failing

to obtain a psychological evaluation after they learned from Dr. Atkins's

report that Travis needed further evaluation, Travis failed to satisfy his

burden of proof at the evidentiary hearing that his counsels' performance

was deficient for failing to hire a mental-health expert.

As highlighted by Travis's argument and by the circuit court's

credibility determinations outlined above, "expert witnesses can have

varying opinions about the same subject matter." Peraita v. State, [Ms.

CR-17-1025, Aug. 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021).

Because expert opinions regarding the same subject matter are not

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interchangeable, it is incumbent upon a petitioner who claims that his or

her counsel was ineffective for failing to hire an expert witness to prove

at an evidentiary hearing (1) that such an expert witness exists, (2) what

the expert witness's testimony would have been at trial had his counsel

called that expert witness to testify, and (3) that the expert witness was

both willing and able to testify at the petitioner's trial. See Brooks, 340

So. 3d at 437 ("[T]o obtain relief on a claim that counsel were ineffective

for failing to hire an expert witness, the petitioner must first plead the

name of that expert, the substance of that expert's testimony, and that

the expert is willing and available to testify at the petitioner's trial; then

the petitioner must prove each of those allegations at an evidentiary

hearing."). What is more, because "we must evaluate counsel's

performance based on counsel's perspective at the time," Woodward v.

State, 276 So. 3d 713, 763 (Ala. Crim. App. 2018), counsel cannot be

ineffective for failing to present the opinion of an expert witness who was

not an expert in their respective field at the time counsel is alleged to

have rendered the ineffective assistance. See, e.g., Brooks, 340 So. 3d at

438 ("Given that Dr. Agharkar was in the middle of his forensic

psychiatry fellowship and was not yet board-certified in that field at the

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time of Brooks's trial ... , we fail to see how Brooks's counsel were

ineffective for failing to hire Dr. Agharkar ... as [an] expert witness[] in

[his] respective field[].").

Here, to prove his claim that his trial counsel were ineffective for

failing to have Travis examined after they received Dr. Atkins's report,

Travis presented the testimony of Dr. Brook. Dr. Brook said that he

performed a "neuropsychological assessment" on Travis and that he

diagnosed Travis with "posttraumatic stress disorder and, also, complex

developmental trauma disorder that, in the Diagnostic and Statistical

Manual, is diagnosed under other specified trauma and stressor-related

disorder." (Evid. Hrg. Oct. 2017, R. 27, 33.) Although Dr. Brook testified

that he is a licensed clinical psychologist, Dr. Brook explained that he did

not receive his Ph.D. in clinical psychology until 2011 and that he was

not licensed in clinical psychology until 2013 -- nearly, 20 years after

Travis's trial. (Evid. Hrg. Oct. 2017, R. 17-18.)

Given that Dr. Brook was not a licensed clinical psychologist until

nearly 20 years after Travis's trial, Travis failed to satisfy his burden of

proving that Dr. Brook was "willing and available" to provide an expert

opinion at Travis's trial. Consequently, Travis failed to prove that his

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counsels' performance was deficient for failing to hire Dr. Brook as a

mental-health expert. Thus, the circuit court did not err when it denied

this claim.

Even so, as explained above, the circuit court correctly concluded

that Travis failed to satisfy his burden of proving that his counsel

performed deficiently because his claim is "premised on the questionable

testimony of Dr. Brook," whose opinion was at odds with Dr. King's

finding that Travis did not suffer from post-traumatic stress disorder,

who diagnosed Travis with "complex developmental trauma disorder"

when no such diagnosis exists in the DSM-V (a manual of mental

disorders, which did not exist at the time of Travis's trial), and who

conceded that "he could not reliably diagnose Travis's mental status or

neuropsychological status in 1991, but nonetheless believes Travis has

suffered from PTSD most of his life." (C. 4093-94.) What is more, Travis

failed to prove that he was prejudiced by his counsels' failure to obtain a

neuropsychological expert to evaluate him.

Accordingly, Travis is due no relief as to this claim.

II.A.2.

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Travis next argues that his counsel were ineffective during the

penalty phase of his trial because, he says, they "presented a

contradictory and confused mitigation case." (Travis's brief, p. 78.)

Specifically, Travis argues that his trial counsel, Elbrecht,

"stated in his 2002 affidavit that his strategy during the penalty phase was to emphasize to the jury Travis's abusive childhood. (Elbrecht Affidavit, Ex. 1 at 1.) But at the trial itself, he presented only incoherent details about Travis's early childhood (until age 6) and then affirmatively disclaimed the notion that Travis's childhood was relevant to his moral culpability. The result of such a haphazard presentation of evidence was that no reasonable jury could have understood and meaningfully weighed the mitigating value of the evidence of Travis's objectively horrific childhood and upbringing."

(Travis's brief, p. 78.) Travis further argues that his counsels' penalty-

phase opening statement was insufficient; that his counsel presented "a

string of obviously unprepared and rushed witness examinations"; that

his counsel presented only one exhibit to the jury, which, he says,

consisted of several documents that "were organized in such a way as to

suggest trial counsel dropped them on the floor, re-shuffled them, and

mixed them with other files before finalizing"; that his counsel failed to

properly examine Findley, who, he says, could have explained Exhibit 1

to the jury; that his counsels' closing argument "undercut any strategy

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[they] may have had" because, he says, counsel "told the jury that he was

not trying to blame the crime on a 'poor childhood' " and "purposefully

distanced [counsel] from Travis"; and that his counsel "failed to object to

the submission of the penalty phase case to the jury at 5:09 p.m. on a

Saturday evening." (Travis's brief, pp. 78-83.)

Travis also argues that his counsel were ineffective for failing to

present the following evidence during the penalty phase:

• "Travis's birth mother consumed excessive amounts of alcohol while she was pregnant with him." (Travis's brief, p. 84.)

• "Travis watched Crabtree chase his birth mother with a shotgun, and beat her on multiple occasions." (Travis's brief, p. 84.)

• "Travis watched as his sister was raped." (Travis's brief, p. 84.)

• "Travis suffered from debilitating polysubstance abuse: he would inhale gasoline until he passed out to escape the trauma he had suffered. He used numerous drugs, like acid and crack cocaine. (C.R. 1258.) In other words, his trauma forced him to self-medicate to the point that he put his own life at risk-including attempting suicide by overdose. (H.R. 392:3-10.)" (Travis's brief, p. 84.)

• "Travis's history of suicide attempts as a result of his past traumas. (See, e.g., Pet. Ex. 10 at P_001081.) Trial counsel admitted at the Rule 32 hearing that he could not recall a reason for failing to include this information

99 CR-18-0973

in his presentation. (H.R. 1157:13-1158:4.)" (Travis's brief, p. 84.)

• "Travis's consistent behavioral problems, including walking on all fours like an animal and throwing himself into the wall. (C.R. 915.)" (Travis's brief, p. 84.)

• "Travis's consistent difficulty and mistreatment at the various youth centers and schools." (Travis's brief, p. 84.)

• "Travis's adoptive mother, Marian Travis, was an abusive alcoholic. Overwhelming evidence showed that Travis's mother was an out of control alcoholic. (See Id. 1073, 927-28 (DHR records detailing reports of Marian Travis's severe alcohol problems in the home and how this was affecting Travis); Resp. Ex. 8 at 45:18-48:4.) This was particularly traumatic for Travis as he had been removed from his mother and sisters due in large part to his own mother's alcoholism. (See C.R. 1231­1254.)." (Travis's brief, pp. 84-85.)

As the State correctly points out, in raising the broad argument on

appeal that his counsel were ineffective because they "presented a

contradictory and confused mitigation case," Travis "fails to tie this

argument to any of the specific claims that he raised in his fifth amended

petition, much less address the circuit court's findings and conclusions

regarding a particular claim that he raised in that petition and argue

why he believes the circuit court erred in denying relief on that claim."

(State's brief, p. 78.) More problematic, however, is the fact that Travis

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appears to take several individual claims of ineffective assistance of

counsel that he raised in his fifth amended petition and lump them

together under the broad categorization that his counsel presented a

"contradictory and confused mitigation case," leaving this Court to figure

out which of Travis's claims raised in this section of his appellate brief

relate to the claims that he raised in his fifth amended petition that the

circuit court denied. It is not the function of this Court to sift through

Travis's arguments in his appellate brief and his allegations in his fifth

amended petition and piece Travis's arguments together in a way that

would allow this Court to review the circuit court's judgment. "Judges

are not like pigs, hunting for truffles buried in briefs." United States v.

Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). For this reason, we conclude

that Travis has failed to satisfy Rule 28(a)(10), Ala. R. App. P., and his

arguments are deemed waived.

Travis also fails to satisfy Rule 28(a)(10) because he neither

explains how he satisfied his burden at the evidentiary hearing of proving

the claims of ineffective assistance of counsel that he raised in his fifth

amended petition, nor does he explain how the circuit court's denial of

those claims of ineffective assistance of counsel was in any way

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erroneous. "This Court has held that similar failures of argument do not

comply with Rule 28(a)(10), Ala. R. App. P., and constitute a waiver of

the underlying postconviction claim. See, e.g., Morris v. State, 261 So.

3d 1181 (Ala. Crim. App. 2016)." Woodward, 276 So. 3d at 746.

II.A.3.

Finally, Travis argues that his counsel were ineffective during the

penalty phase of his trial because they "fail[ed] to obtain a mitigation

expert." (Travis's brief, p. 85.) According to Travis, "[p]art of what would

have constituted an effective presentation, and effective representation

under the Constitution, would have been to use a qualified mitigation

expert to detail and explain the full extent of Travis's trauma and how

that trauma affected his development into adulthood." (Travis's brief, p.

85.)

In his fifth amended petition, Travis alleged that his counsel were

ineffective during the penalty phase of his trial because they "failed to

provide expert testimony about [his] psychological problems and the

effects of his early childhood trauma." (C. 2045.) In raising this claim,

Travis alleged that, if his counsel had "retained a social work/mitigation

expert for trial, [they] would have been able to present evidence … to

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counter the State's theory for the sentencing phase, that Mr. Travis had

every opportunity to succeed once he no longer lived with his biological

mother"; "the jury would have heard that Mr. Travis had a psychological

evaluation at age thirteen that showed the effects of his childhood abuse

had already profoundly affected him" -- i.e., "he was anxious and

depressed and had threatened suicide"; and "the jury would have heard

about the dire impact Mr. Travis's childhood abuse had on his life." (C.

2047-48.) Travis further alleged that Dr. Marti Loring could have

testified as a "social work/mitigation expert." (C. 2048.) The circuit court

gave Travis an opportunity to prove this claim at an evidentiary hearing.

At the hearing, Travis called Dr. Loring to testify about the benefits

of counsel hiring a mitigation expert for the penalty phase of trial, her

work as a social worker in this case, and what she had learned about

Travis's childhood that she thought would have been beneficial to present

at the penalty phase. Travis also called three of his trial counsel to testify

at the hearing. The lead counsel in Travis's case -- George Elbrecht --

testified that they had asked the trial court for a "pre-sentence

investigation expert" (Evid. Hrg. Oct. 2018, R. 221), but the trial court

denied his request (Evid. Hrg. Oct. 2018, R. 222). Elbrecht explained,

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however, that the trial court had provided them with funds to hire an

investigator -- Allen McGraw -- who investigated Travis's background

and provided them helpful mitigation information. Elbrecht said that

they told McGraw "to do as thorough an investigation as he could" into

Travis's background. (Evid. Hrg. Oct. 2018, R. 290.) Elbrecht also said

that the strategy of the mitigation case was to show that Travis "had a

terrible childhood." (Evid. Hrg. Oct. 2018, R. 447.) Elbrecht explained

that, in preparation for the penalty phase, they obtained numerous

records, including records from DHR, and that they introduced those

records during the penalty phase. (Evid. Hrg. Oct. 2018, R. 458.)

Elbrecht further explained that they introduced 5 exhibits during the

penalty phase and called 12 witnesses to testify, and that their focus was

to show that Travis "was the product of a horrible childhood." (Evid. Hrg.

Oct 2018, R. 459.) But Elbrecht said that they did not want to attack

Travis's adoptive parents because

"Mr. and Mrs. Travis were the objects, I think, of great pity at the time of these events. As hostile as the environment was, attacking them would not have helped Mr. Travis, Wayne. Putting on that [Travis's adoptive mother] was an alcoholic, in my judgment, would not have helped Wayne Travis. I thought at the time that the events of his childhood, before he was put into the hands of his parents that adopted him, was something that the jury should know about." 104 CR-18-0973

(Evid. Hrg. Oct. 2018, R. 332-33.)

After the evidentiary hearing, the circuit court denied this claim

finding that Travis failed "to acknowledge that his counsel called twelve

witnesses at the penalty phase of his trial," which included his sisters

and a social worker who "testified about the traumatic childhood that

Travis and his siblings experienced at the hands of his biological mother

and her live-in boyfriend, Jackie Crabtree, from the time that he was

born until approximately age five." (C. 4141.) The circuit court noted

that Travis relied "solely on the testimony of Dr. Marti Loring to support

his claim that his counsel should have called a social worker at his trial,"

but "much of her testimony focused on Travis's early childhood and

background" and, thus, was "cumulative to the testimony that was

elicited at trial from [Travis's] sisters and others." (C. 4141-42.) The

circuit court also found that Cary Travis -- Wayne's adoptive father --

denied "much of Dr. Loring's testimony that she attributes to him," and

that it found Cary Travis more credible than Dr. Loring. (C. 4142.)

Additionally, the circuit court concluded that "much of the record refutes

Dr. Loring's claims," and that "Dr. Loring chose to disregard information

in the record ... that paints Travis in a negative light and instead chose 105 CR-18-0973

to focus on information that she decided could assist him with his attack

on his conviction and sentence." (C. 4142.) Thus, the circuit court

concluded, Dr. Loring is "less than a credible witness." (C. 4142.)

Although it found Dr. Loring "less than" credible, the circuit court

concluded that Travis had "satisfied his burden of proving deficient

performance with regard to this claim." (C. 4143.) But it also concluded

that Travis had "failed to satisfy his burden of proving prejudice" because

his trial counsel "effectively elicited compelling testimony regarding his

traumatic childhood from his sisters and other witnesses at the penalty

phase of his trial." (C. 4143.) Although the circuit court found that Travis

had satisfied his burden of establishing that his counsel were deficient in

failing to hire a mitigation expert, we question the circuit court's

conclusion.

Indeed, this Court has explained that " '[h]iring a mitigation

specialist in a capital case is not a requirement of effective assistance of

counsel.' Phillips v. Bradshaw, 607 F.3d [199,] 207-08 [(6th Cir. 2010)]."

Daniel v. State, 86 So. 3d 405, 437 (Ala. Crim. App. 2011). This is

especially true in cases like this one where trial counsel hired an

independent investigator -- Allen McGraw -- who had previously worked

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on two capital cases as an investigator and who conducted an

investigation not only into the facts surrounding Travis's case, but also

into any potentially mitigating evidence to aid the defense during the

penalty phase of Travis's trial. According to McGraw's affidavit, which

the State admitted during the evidentiary hearing, McGraw explained:

"During the course of my investigation, I spoke with and interviewed countless people. During my meetings with Wayne, I repeatedly asked for names of individuals that could provide information in preparing his guilty and penalty phase defense. I tracked down, or at least attempted to track down, every bona fide lead Wayne gave me.

"I met with Wayne's adoptive parents on more than one occasion. I even met with and interviewed Wayne's adoptive aunt and uncle. These people, however, were not able to provide much information that was helpful during the guilt phase of Wayne's trial. They did provide information that was used at the penalty phase of the trial.

"I also traveled to north Alabama and met with Wayne's biological family as part of my penalty phase investigation. Specifically, I met with Wayne's biological mother, three of his sisters, and two brothers-in-law. Wayne's biological father would not meet with me. Wayne also had another sister that would not meet with me. Wayne's biological mother denied doing anything abusive or neglectful to her son. Wayne's sisters provided a lot of insight into Wayne's childhood before he was placed in foster care.

"In addition to speaking with members of Wayne's adoptive and biological family in preparation for the penalty phase, I also interviewed anyone and everyone I could that knew Wayne growing up. I spoke to the law enforcement and 107 CR-18-0973

other state officials, what is now the Department of Human Resources ('DHR'), that were involved in taking Wayne and his sisters away from their biological mother. I also interviewed the foster family Wayne was placed with before he was adopted. I interviewed Wayne's school teachers as well as personnel at the various 'Youth Homes' and detention facilities that Wayne lived in. I even talked to people that lived near where Wayne lived with his adoptive parents as well as several other people in the community. I also met Wayne's daughter and interviewed his daughter's mother. Some of these people were able to tell me about the tragic life Wayne was subjected to before he was adopted. While Wayne's life before he was adopted was absolutely horrid, the people that knew him after his adoption described Wayne as someone that only caused problems for himself and others. In fact, the people in the community where his adoptive family lived were afraid of Wayne. Even Wayne's adoptive parents were afraid of him. My investigation also revealed that Wayne's adoptive mother was an alcoholic.

"During the course of my interviews with Wayne's biological family, it became apparent that Wayne was subject to just about anything happening to him."

(Fourth Supp. Record, C. 11-12.)

In other words, although Travis's trial counsel did not have a

"mitigation expert," Travis's counsel had an investigator who conducted

an investigation into Travis's background for purposes of presenting

mitigation evidence during the penalty phase of Travis's trial.

108 CR-18-0973

Regardless, the circuit court correctly concluded that Travis failed

to satisfy his burden of proving that he was prejudiced by his counsels'

failure to hire Dr. Loring as a mitigation expert. Indeed, although Dr.

Loring provided testimony about mitigating evidence that she could have

discovered had she been retained as a mitigation expert, that mitigating

evidence was either cumulative to evidence presented during the penalty

phase, contradicted evidence that was presented during the penalty

phase, was inconsistent with trial counsel's mitigation strategy, or was,

as the circuit court found, simply not credible. Thus, even if the circuit

court was correct in finding that Travis's trial counsel should have

obtained a mitigation expert, the trial court did not abuse its discretion

in finding that Travis failed to establish that he was prejudiced by his

counsel's failure to hire Dr. Loring as a mitigation expert. Travis's

counsel presented substantial mitigating evidence, but the jury, and the

circuit court, determined that the aggravating factors outweighed the

mitigating factors presented by the defense.

Accordingly, the Travis is due no relief on this claim.

II.B.

109 CR-18-0973

Next, Travis argues that his "trial counsel's performance at the

penalty phase prejudiced [him]." (Travis's brief, pp. 90-92.) Travis sums

up his argument on appeal as follows:

"Travis was prejudiced by the lack of evidence about his childhood and trauma that the jury did not hear during the penalty phase of his trial -- either because trial counsel did not present it, or presented it in a confusing and inaccessible manner. If the trial court and the jury had the benefit of knowing the multitude of mitigating factors that trial counsel failed adequately to investigate and identify, there is at least a reasonable probability that Travis would have received a lesser sentence."

(Travis's brief, p. 92.)

As best as we can tell, Travis is raising a stand-alone argument

about the Strickland v. Washington, 466 U.S. 668 (1984), prejudice prong

as to the penalty-phase claims addressed above, but Travis's arguments

concerning prejudice are without merit. As discussed above, none of

Travis's penalty-phase claims of ineffective assistance of counsel entitle

him to any relief because he has either waived the claim by not

adequately presenting it to this Court, because his counsel did not

perform deficiently, or because he failed to establish any prejudice by his

trial counsel's actions. Accordingly, Travis is due no relief on this claim.

III. "Cumulative Effect" of Ineffective Assistance of Counsel

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Finally, Travis argues that the circuit court erred because it "failed

to consider the cumulative effect of trial counsel's ineffective assistance."

(Travis's brief, p. 92.) According to Travis, "[w]hether 'counsel's

performance was deficient' and whether that 'deficient performance

prejudiced the defense' requires an examination of counsel's entire

performance, not just the individual aspects of that performance."

(Travis's brief, p. 93.)

"But 'Alabama does not recognize a "cumulative effect" analysis for ineffective-assistance-of-counsel claims.' Carruth v. State, 165 So. 3d 627, 651 (Ala. Crim. App. 2014). We have repeatedly declined similar requests from petitioners to do so. See, e.g., Mashburn v. State, 148 So. 3d 1094, 1118 (Ala. Crim. App. 2013); Washington, 95 So. 3d at 58. And because [Travis] has shown no deficient performance, there is no opportunity for this Court to engage in a cumulative-effect analysis."

Lewis v. State, 333 So. 3d 970, 1016 (Ala. Crim. App. 2020) (opinion on

return to remand). Even if this Court accepts the circuit court's

conclusion that Travis's counsel were deficient in failing to hire a

mitigation expert, an analysis of cumulative error would not be necessary

in relation to this singular finding of deficient conduct. Accordingly,

Travis is not entitled to any relief on this claim.

Conclusion

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Based on these reasons, the judgment of the circuit court is

affirmed.

Windom, P.J., and McCool and Minor, JJ., concur. Kellum, J.,

concurs in the result.