Opinion
No. CR-01-0700.
January 6, 2004.
Appeal from Pike Circuit Court (CC-94-7.60)
On Return to Remand
On April 25, 2003, we remanded this case to the circuit court with instructions that that court determine whether the appellant, Holly Wood, is mentally retarded and whether his trial attorneys rendered ineffective assistance by not developing and presenting evidence that he is mentally retarded. On remand, the circuit court conducted an evidentiary hearing and entered an extensive order in compliance with our instructions. Afterward, the appellant submitted a brief in which he raised arguments concerning the remand proceedings. We now address the remaining arguments he raised in his brief on original submission and the arguments he raises in his brief on return to remand
The appellant raises numerous arguments, including claims that his attorneys rendered ineffective assistance during the proceedings. In reviewing the circuit court's rulings on the appellant's arguments, we apply the following principles:
"'"[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v. State, 615 So.2d 129 (Ala.Cr.App. 1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Crim.App. 1993), cert. denied, [511] U.S. [1046], 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).
"In addition, '[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App. 1993)."
Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App. 1995).
"To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
"'The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances. . . . "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.'
"Duren v. State, 590 So.2d 360, 362 (Ala.Cr.App. 1990), aff'd, 590 So.2d 369 (Ala. 1991), cert. denied, [503] U.S. [974], 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).
"When this court is reviewing a claim of ineffective assistance of counsel, we indulge a strong presumption that counsel's conduct was appropriate and reasonable. Luke v. State, 484 So.2d 531, 534 (Ala.Cr.App. 1985). The burden is on the appellant to show that his counsel's conduct was deficient. Luke.
"'Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.'
"Strickland, 466 U.S. at 689, 104 S.Ct. at 2065-66. (Citations omitted.) Ex parte Lawley, 512 So.2d 1370, 1372 (Ala.Cr.App. 1987).
"Initially we must determine whether counsel's performance was deficient. We must evaluate whether the action or inaction of counsel of which the petitioner complains was a strategic choice. 'Strategic choices made after a thorough investigation of relevant law and facts are virtually unchallengeable. . . .' Lawley, 512 So.2d at 1372. This court must avoid using 'hindsight' to evaluate the performance of counsel. We must evaluate all the circumstances surrounding the case at the time of counsel's actions before determining whether counsel rendered ineffective assistance. Falkner v. State, 586 So.2d 39 (Ala.Cr.App. 1991)."
Hallford v. State, 629 So.2d 6, 8-9 (Ala.Crim.App. 1992).
"In determining whether a defendant has established his burden of showing that his counsel was ineffective, we are not required to address both considerations of the Strickland v. Washington test if the defendant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. at 2069. In fact, the Court explained that '[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' Id. We defer to this guidance and address the 'prejudice' prong, for '[w]ith respect to the prejudice component, the lack of merit of [Thomas's] claim is even more stark.' Id. at 699, 104 S.Ct. at 2070."
Thomas v. State, 511 So.2d 248, 255 (Ala.Crim.App. 1987) (footnote omitted).
"Furthermore, to render effective assistance, an attorney is not required to raise every conceivable constitutional claim available at trial and on appeal. Holladay v. State, 629 So.2d 673 (Ala.Cr.App. 1992), cert. denied, 510 U.S. 1171, 114 S.Ct. 1208, 127 L.Ed.2d 555 (1994); McCoy v. Lynaugh, 874 F.2d 954, 965-66 (5th Cir. 1989). Rather, counsel must be given some discretion in determining which claims possibly have merit, and thus a better chance of success, and which claims do not have merit, and thus have little chance of success. Heath v. State, 536 So.2d 142 (Ala.Cr.App. 1988); Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Engle v. Isaac, 456 U.S. 107, 102 So. Ct. 1558, 71 L.Ed.2d 783 (1982)."
Davis v. State, 720 So.2d 1006, 1014 (Ala.Crim.App. 1998).
I.
The appellant argues that he is mentally retarded, that his attorneys rendered ineffective assistance by not developing and presenting evidence that he is mentally retarded, and that his attorneys rendered ineffective assistance by not requesting a jury instruction on mental retardation. On remand, in a thorough 57-page order, the circuit court made extensive findings concerning the appellant's contentions that he is mentally retarded and that his attorneys rendered ineffective assistance by not developing and presenting evidence that he is mentally retarded. In that order, the circuit court concluded that the appellant did not establish that he is mentally retarded and therefore did not establish that his attorneys rendered ineffective assistance by not developing and presenting evidence that he is mentally retarded. The record supports those findings, and we adopt them as part of this opinion. Therefore, we conclude that the appellant's arguments in this regard are without merit.
We have taken judicial notice of the record from the appellant's direct appeal in this case. See Nettles v. State, 731 So.2d 626 (Ala.Crim.App. 1998).
In his brief on remand, the appellant argues that the circuit court did not apply the correct standard in determining whether he is mentally retarded; improperly required him to establish that he is mentally retarded by a higher standard than a preponderance of the evidence; and improperly found that he is not mentally retarded. He also argues that the Sixth Amendment requires that his sentence be vacated and that a new sentencing hearing be conducted so a jury can determine whether he is mentally retarded. However, he did not first present any of these arguments to the circuit court. Therefore, they are not properly before this court. See Fincher v. State, 724 So.2d 87 (Ala.Crim.App. 1998).
The appellant further argues that, on remand, the State improperly refused to withdraw its threat to prosecute his expert if she testified during the evidentiary hearing. However, before the evidentiary hearing started, the State indicated that it did not have any intention of prosecuting the expert witness if she testified. Therefore, the record refutes the appellant's argument.
II.
The appellant also argues that the attorney who acted as his lead counsel during the penalty phase of his trial "was per se ineffective by virtue of his inexperience and non-compliance with governing Alabama law." (Appellant's brief at p. 31.) Specifically, he contends that one of his trial counsel had practiced as an attorney only five months when he was appointed to handle this case. However, he did not present this argument in any of his petitions or during the evidentiary hearing. Rather, he raised it only in his post-hearing brief. Therefore, it is not properly before this court. See Morrison v. State, 551 So.2d 435 (Ala.Crim.App. 1989).
Moreover, the appellant was also represented by two other attorneys who each had more than five years of experience in the practice of criminal law. Therefore, the requirements of § 13A-5-54, Ala. Code 1975, were satisfied in this case, and the appellant's argument is without merit.See Parker v. State, 587 So.2d 1072 (Ala.Crim.App. 1991).
III.
The appellant further argues that his attorneys rendered ineffective assistance in numerous instances.
A.
First, the appellant contends that his attorneys rendered ineffective assistance because they allegedly did not investigate and present sufficient mitigating evidence during the penalty phase of his trial. In support of his contention, he makes reference to additional evidence that he contends is mitigating and that he contends his attorneys could have presented during the penalty phase of his trial.
In Daniels v. State, 650 So.2d 544, 568-70 (Ala.Crim.App. 1994), we stated the following regarding a claim that trial counsel had rendered ineffective assistance during the penalty phase of a capital murder trial:
"In determining whether Haas was ineffective at original sentencing, . . . we recognize that the
"'two-pronged Strickland analysis applies whether the ineffectiveness complained of occurred in the defendant's trial or in a subsequent adversarial sentencing proceeding. However, in a challenge to the imposition of a death sentence, the prejudice prong of the Strickland inquiry focuses on whether "the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."'
"Stevens v. Zant, 968 F.2d 1076, 1081 (11th Cir. 1992) (citation omitted), cert. denied, [507] U.S. [929], 113 S.Ct. 1306, 122 L.Ed.2d 695 (1993). We also recognize that
"'[w]hile "[i]t should be beyond cavil that an attorney who fails altogether to make any preparations for the penalty phase of a capital murder trial deprives his client of reasonably effective assistance of counsel by any objective standard of reasonableness," see Blake v. Kemp, 758 F.2d 523, 533 (11th Cir. 1985), it is unclear how detailed an investigation is necessary to provide a defendant with the effective assistance of counsel. Strickland only requires that counsel's actions fall within the wide spectrum of what can be considered reasonable assistance of counsel.'
"White v. Singletary, 972 F.2d 1218, 1224 (11th Cir. 1992). The principles regarding an attorney's duty to conduct an investigation into mitigating evidence have been summarized as follows:
"'An attorney has a duty to conduct a reasonable investigation, including an investigation of the defendant's background, for possible mitigating evidence. Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986). First, it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end. Funchess v. Wainwright, 772 F.2d 683, 689-90 (11th Cir. 1985). If, however, the failure to present the mitigating evidence was an oversight, and not a tactical decision, then a harmlessness review must be made to determine if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thus, it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.'
"Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988).
"Applying the foregoing principles to the issue of whether Haas provided effective assistance of counsel at original sentencing, we conclude that the appellant's claim is without merit. Although the defense called only one witness at the sentencing hearing, that witness was Mrs. Hebert, the appellant's mother, who pleaded for the appellant's life. Mrs. Hebert had retained Haas, conferred with him at length, paid all his trial fees, and, by the time of sentencing, had exhausted her funds. The circuit court's sentencing order stated that 'it is apparent to the court that [Mrs. Hebert] was devoted to [the appellant].'
"Since Haas had spoken with Mrs. Hebert about the appellant and had observed by her words and actions that she appeared to be 'devoted' to the appellant, we cannot fault Haas for failing to discover the appellant's 'traumatic' childhood, in which, according to later testimony by Dr. Herlihy, Mrs. Hebert's 'emotional rejection' of her son played a large part. Compare Bertolotti v. Dugger, 883 F.2d 1503, 1520 (11th Cir. 1989) (defense counsel held to have provided effective assistance on claim that counsel overlooked or failed to investigate evidence of defendant's traumatic childhood, where counsel interviewed defendant's parents), cert. denied, 497 U.S. 1031, 110 S.Ct. 3296, 111 L.Ed.2d 804 (1990). See also Beets v. Collins, 986 F.2d 1478, 1488-89 (5th Cir. 1993) (although counsel did not 'conduct a thorough investigation of [the defendant's] medical, mental, and psychological history,' which would have revealed that the defendant 'was raised in abject poverty, experienced a debilitating hearing loss, was afflicted with learning disabilities, had received head injuries as a child, and suffers from battered woman syndrome,' the court observed that the defendant never gave her attorney 'any hint that she had been abused by previous husbands or boyfriends. Neither [the defendant] nor any other member of her family ever conveyed to [the attorney] any information giving him reason to believe that she had a history of being physically abused.'), rehearing granted, 998 F.2d 253 (5th Cir. 1993); Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir. 1992) (despite fact that counsel failed to present evidence of defendant's 'low IQ, emotional immaturity, troubled youth, trauma as a result of his parents' divorce, and appearance of neglect,' court found that counsel had 'thoroughly investigated these claims, consulting with his client as well as [client's] father and brother for possible mitigating evidence,' and the claims were not supported in fact), cert. denied, [509] U.S. [926], 113 S.Ct. 3045, 125 L.Ed.2d 730 (1993); Wilkerson v. Collins, 950 F.2d 1054, 1064-65 (5th Cir. 1992) (although attorney failed to discover or develop mitigating evidence that defendant had a 'deprived family background,' and psychological and mental 'limitations,' the court observed that 'trial counsel interviewed [the defendant], his mother, and other relatives. Neither [the defendant] nor his relatives were able to supply the names of potential defense witnesses. Investigation did not reveal reason to suspect that [the defendant's] mental capacity was in any fashion impaired.'), cert. denied, [509] U.S. [921], 113 So. Ct. 3035, 125 L.Ed.2d 722 (1993); Thompson v. State, 581 So.2d 1216, 1238 (Ala.Cr.App. 1991) (upholding circuit court's finding that counsel, who presented only the testimony of defendant's mother at sentencing, was not ineffective for failing to present evidence of the defendant's violent family background, addiction and substance abuse), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992).
"We hold that Haas was not ineffective at the original sentencing proceeding."
650 So.2d at 568-70 (emphasis omitted). Also, counsel does not necessarily render ineffective assistance simply because he does not present all possible mitigating evidence. "Although the failure to conduct a reasonable investigation of possible mitigating evidence may constitute ineffective assistance of counsel, 'counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.' Stanley v. Zant, 697 F.2d 955, 965 (11th Cir. 1983), cert. denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)."Lundy v. State, 568 So.2d 399, 403 (Ala.Crim.App. 1990).
"When a decision to not put on certain mitigating evidence is based on a 'strategic choice,' courts have always found no ineffective performance. Moore v. Maggio, 740 F.2d 308 (5th Cir. 1984), cert. denied, 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985); Lowenfield v. Phelps, 817 F.2d 285 (5th Cir. 1987), aff'd, 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). No two lawyers would try a case exactly the same way.
"We cannot say that counsel's performance is deficient because he failed to call more witnesses at the sentencing phase. 'The decision not to call a particular witness is usually a tactical decision not constituting ineffective assistance of counsel.' Oliver v. State, 435 So.2d 207, 208 (Ala.Cr.App. 1983). At the hearing on the Rule 32 petition, the appellant's mother, two of his aunts, an uncle, and several old friends offered character testimony. Most of these witnesses did not have contact with the appellant near the time of the murder. There has never been a case where additional witnesses could not have been called. The appellant presented relatives and personal friends who, upon interview, were found to testify on his behalf. We refuse to set a standard that a court may be reversed because it did not hear unoffered testimony from still more friends and relatives. We also refuse to say that a member of the bar is guilty of ineffectiveness for not calling every witness and friend who was willing to testify. To hold otherwise would clog an already overburdened system with repetitious testimony. The appellant has failed to satisfy either prong of the Strickland test."
State v. Tarver, 629 So.2d 14, 21 (Ala.Crim.App. 1993).
"With regard to McKinnon's representation of Morrison at the punishment-fixing and sentencing phases of his trial, we find that the observations of the court in Clark v. Dugger, 834 F.2d 1561, 1568 (11th Cir. 1987), are appropriate:
"'The failure to conduct a reasonable investigation of possible mitigating evidence may render counsel's assistance ineffective. Lightbourne v. Dugger, 829 F.2d 1012, 1025 (11th Cir. 1987); Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir. 1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 825 (1987). "After a sufficient investigation, however, 'counsel may make a reasonable strategic judgment to present less than all possible available evidence in mitigation.'" Lightbourne, 829 F.2d at 1025 (quoting Mitchell v. Kemp, 762 F.2d 886, 889 (11th Cir. 1985), cert. denied, 483 U.S. 1026, 107 S.Ct. 3248, 97 L.Ed.2d 774 (1987) and Stanley v. Zant, 697 F.2d 955, 965 (11th Cir. 1983), cert. denied, sub nom. [Stanley v. Kemp,] 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 372 (1984)). In essence, "[c]ounsel has no absolute duty to present mitigating character evidence." Id. (quoting Mitchell, 762 F.2d at 889). [Counsel] conducted a reasonable investigation to determine the availability of appropriate mitigating evidence and simply made a tactical decision to not present some of the available mitigating evidence. In this circuit, [counsel's] decision is "accorded a strong presumption of correctness which is 'virtually unchallengeable.'" Id. (quoting Sinclair v. Wainwright, 814 F.2d 1516, 1519 (11th Cir. 1987) and Strickland v. Washington, 466 U.S. 668, 690, 104 So. Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)). Given the alternatives . . . faced, [counsel's] handling of the penalty phase was not unreasonable. See Stanley, 697 F.2d at 958-70. We therefore conclude that there has been no showing of ineffective assistance nor prejudice to defendant in the way trial counsel prepared and tried [this] case.'"
Morrison v. State, 551 So.2d 435, 445 (Ala.Crim.App. 1989) (alterations in original).
"We find that the holding of Fleming v. Kemp, 748 F.2d 1435, 1452 (11th Cir. 1984), cert. denied, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), is applicable here:
"'In summary, we are not persuaded by petitioner's argument that . . . [defense counsel] rendered him ineffective assistance of counsel. Petitioner's examples of professional dereliction dissolve away under close scrutiny, leaving at best a handful of colorable claims. A defense attorney is not ineffective solely because his client is sentenced to death. "Intrusive post-trial inquiry into attorney performance," such as that which has been required in this case, may "dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client." Strickland v. Washington, [466] U.S. at [690], 104 S.Ct. at 2066. Counsel's performance, here, ensured a fundamentally "fair trial" which "produced a just result." Id. at [686], 104 S.Ct. at 2064. There is no reason to set aside petitioner's conviction or his penalty on account of the representation he received.'"
Bell v. State, 518 So.2d 840, 847 (Ala.Crim.App. 1987). Finally, the appellant bears a heavy burden of proof when he claims that his counsel rendered ineffective assistance.
"Further, we cannot say that the appellant suffered any prejudice based on counsel's performance because he failed to demonstrate any evidence of mitigation. Prejudice cannot merely be alleged; it must be affirmatively proved. Duren v. State, 590 So.2d 360 (Ala.Crim.App. 1990). Thus, the appellant has not shown that there is a reasonable probability that the outcome of his trial would have been different, but for trial counsel's performance. Baldwin, Thompson v. State, 581 So.2d 1216 (Ala.Crim.App. 1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992)."
Brooks v. State, 695 So.2d 176, 182 (Ala.Crim.App. 1996), aff'd, 695 So.2d 184 (Ala. 1997).
When it addressed this contention, the circuit court noted, in part:
"Many of the [claims] asserted by Wood allege that more should have been done. When a claim is raised that trial counsel should have done something more, the Court first looks at what counsel did in fact. Chandler, 218 F.3d at 1319. In this case, counsel employed the services of an investigator. In addition, Attorney Trotter met with Wood's family in preparing for the penalty phase. At the penalty phase, trial counsel presented testimony from Wood's father and two of his siblings. Trial counsel also presented evidence suggesting that Wood suffered from an emotional disturbance. Further, the record shows that trial counsel used the services of a private investigator, who prepared reports for use in preparing Wood's defense. The record also shows that trial counsel investigated a potential mental health defense, but decided against presenting it. At the meetings between Attorney Trotter and Wood's family, Trotter testified that he attempted to gather information about Wood's upbringing, background, childhood, what it had been like growing up in Wood's home, Wood's characteristics, and information that could humanize Wood in the jury's eyes.
"Counsel also attempted to get information from Wood's schools. In that regard, counsel contacted individuals at Luverne High School. The testimony at the evidentiary hearing also shows that trial counsel sought information from the Alabama Department of Pardons and Paroles, the Alabama Department of Corrections, and the Department of Human Resources. In addition, trial counsel sought guidance from the Capital Resource Center and the Southern Poverty Law Center.
"Based on the evidence in the record, the Court finds that Wood failed to establish that what trial counsel did in preparation and investigation for the penalty phase was unreasonable. A.R. Cr. P., 32.3. Thus, Wood's claims that more should have been done are not well-taken. The Court finds that Wood failed to establish deficient performance of his attorneys during their preparation of the penalty phase."
(S.C.R. 56-57.) We agree with the circuit court's findings, conclude that they are supported by the record, and adopt them as part of this opinion. Although the appellant has made allegations regarding the performance of his attorneys, he has not established that their performance was deficient and that he was prejudiced by their deficient performance. Therefore, because he has not satisfied his burden of pleading and proof pursuant to Rules 32.3 and 32.6(b), Ala. R. Crim. P., and Strickland as to these claims, he is not entitled to relief in this regard.
B.
Second, the appellant contends that his attorneys rendered ineffective assistance because they:
1) did not adequately prepare for the suppression hearing;
2) did not properly prepare for and act properly during the voir dire proceedings;
3) did not properly advise the appellant regarding jury sequestration;
4) did not adequately argue their Batson motion;
5) did not adequately investigate and challenge the State's investigation and presentation of the case;
6) did not present any defense witnesses during the guilt phase of the trial;
7) did not adequately challenge the evidence the State relied on to establish the burglary and the murder;
8) did not procure necessary expert assistance;
9) did not adequately develop impeachment evidence against the State's leading witness;
10) did not adequately challenge the testimony of the State's witnesses regarding the intentional murder;
11) did not adequately investigate and present evidence regarding his mental state and intoxication at the time of the offense;
12) did not object to prosecutorial misconduct;
13) did not request a jury instruction on intoxication; and
14) did not ask the judge who presided over his trial to recuse himself.
The appellant has made allegations as to these contentions, but he has not adequately established that his attorneys' performance was deficient and that that deficient performance prejudiced him. Therefore, he has not satisfied his burden of pleading and proof under Rules 32.3 and 32.6(b), Ala. R. Crim. P., and Strickland. Accordingly, he is not entitled to relief on these claims.
C.
Third, the appellant contends that his attorneys rendered ineffective assistance, in part, due to allegedly inadequate compensation. To the extent he challenges the statutory limit on attorney fees in capital cases, his argument is procedurally barred because he could have raised it at trial and on appeal, but did not. See Rule 32.2(a)(3) and (a)(5), Ala. R. Crim. P. To the extent he raises an ineffective-assistance-of-counsel claim, his argument is without merit. As set forth above, the circuit court found that the appellant's attorneys rendered effective assistance at trial and on direct appeal. The records of the appellant's trial and the Rule 32 proceedings support those findings. Therefore, the appellant has not satisfied his burden of proof under Strickland or Rule 32.3 and 32.6(b), Ala. R. Crim. P., and he is not entitled to relief on this claim.
IV.
Additionally, the appellant argues that he is entitled to postconviction relief because:
1) the judge who presided over his trial should have recused himself;
2) he was arrested without a warrant or probable cause;
3) any statements he made should have been suppressed;
4) the prosecutor engaged in misconduct during the trial and sentencing proceedings;
5) the capital murder statute pursuant to which he was convicted is unconstitutional;
6) the State did not comply with its discovery obligations under Brady v. Maryland, 373 U.S. 83 (1963);
7) the State did not give adequate notice of the aggravating circumstances upon which it intended to rely;
8) the trial court improperly refused to remove prospective jurors for cause;
9) his death sentence was imposed in a racially discriminatory manner;
10) his human rights were violated in contravention of the International Convention of Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination; and
11) his rights were violated because a juror did not answer a question truthfully during the voir dire proceedings.
Claims 1-10 are nonjurisdictional claims that are precluded pursuant to the provisions of Rule 32.2(a), Ala. R. Crim. P. Also, the appellant has made only bare allegations as to Claim 11 and has not established that he could not have raised that claim at trial and on appeal. See Rules 32.1(e), 32.3, and 32.6(b), Ala. R. Crim. P. Therefore, he is not entitled to relief on any of these claims.
V.
Finally, the appellant argues that the circuit court improperly adopted verbatim the State's proposed order.
"'While the practice of adopting the State's proposed findings of fact and conclusions of law is subject to criticism, the general rule is that even when the court adopts proposed findings and conclusions verbatim, the findings are those of the court and may be reversed only if clearly erroneous. Anderson v. City of Bessemer, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Hubbard v. State, 584 So.2d 895 (Ala.Cr.App. 1991); Weeks v. State, 568 So.2d 864 (Ala.Cr.App. 1989), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 184 (1990); Morrison v. State, 551 So.2d 435 (Ala.Cr.App. 1989), cert. denied, 495 U.S. 911, 110 So. Ct. 1938, 109 L.Ed.2d 301 (1990).'
"Wright v. State, 593 So.2d 111, 117-18 (Ala.Cr.App. 1991), cert. denied, [506] U.S. [844], 113 So. Ct. 132, 121 L.Ed.2d 86 (1992)."
Holladay v. State, 629 So.2d 673, 687-88 (Ala.Crim.App. 1992). The record does not indicate that the circuit court's findings are clearly erroneous. In fact, it supports those findings. Therefore, the appellant's argument is without merit.
For the above-stated reasons, we affirm the circuit court's judgment.
AFFIRMED.
McMillan, P.J., and Shaw and Wise, JJ., concur; Cobb, J., concurs in part in the rationale and concurs in the result, with opinion.
I concur with the majority as to its resolution of the issues in Parts II-V of the opinion. I agree with the result reached by the majority in Part I. I write specially to express my concern regarding the majority's adoption of the trial court's order on return to remand
In Wood v. State, [Ms. CR-01-0700, April 25, 2003] ___ So.2d ___ (Ala.Crim.App. 2003), we remanded the cause for the trial court to conduct an evidentiary hearing to determine whether Wood is mentally retarded and, if so, to determine whether his trial attorneys rendered ineffective assistance by failing to develop and present evidence of his retardation. The trial court conducted the hearing and filed with this Court a comprehensive, superbly written order on return to remand The trial court thoroughly discussed the evidence presented at the hearing and correctly applied the relevant law to those facts.
I do not disagree with the majority's adoption of the trial court's order on return to remand However, I believe that, in a case involving review of postconviction proceedings in a capital murder case in which the death penalty was imposed, discussion and analysis of the trial court's findings of fact and conclusions of law are necessary. Without any specific discussion or analysis of the findings in the trial court's order on return to remand, indeed, without quotation to any of the relevant portions it says the Court adopts, the decision of this Court as to this issue has virtually no precedential value and review of this issue by higher courts will be made unnecessarily difficult.
I would prefer a more comprehensive discussion of the trial court's findings and conclusions in Part I. Therefore, I concur in the result as to Part I.