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09/09/94 THOMAS J. FORTENBERRY v. STATE

September 9, 1994

THOMAS J. FORTENBERRY
v.
STATE



Appeal from Etowah Circuit Court. (CC-85-516). Donald Stewart, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of July 29, 1994, Previously .

Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.

Taylor

The opinion of the court was delivered by: Taylor

ON APPLICATION FOR REHEARING

TAYLOR, JUDGE

This court's opinion of July 29, 1994, is hereby withdrawn and the following opinion substituted therefor.

The appellant, Thomas J. Fortenberry, appeals the denial of his petition for post-conviction relief filed pursuant to Rule 20, Ala.R.Crim.P.Temp. (now Rule 32, Ala.R.Crim.P.). The appellant was convicted of murder made capital because two or more persons were killed during one course of conduct and because the murders were committed during a robbery. § 13A-5-40(a)(10) and § 13A-5-40(a)(2), Code of Alabama 1975. He was sentenced to death by electrocution. We affirmed his conviction in Fortenberry v. State, 545 So. 2d 129 (Ala. Cr. App. 1988). The Alabama Supreme Court affirmed, Ex parte Fortenberry, 545 So. 2d 145 (Ala. 1989), and the United States Supreme Court denied certiorari review, Fortenberry v. Alabama, 495 U.S. 911, 110 S. Ct. 1937, 109 L. Ed. 2d 300 (1990). In November 1990, the appellant filed a petition for post-conviction relief, attacking his conviction and sentence to death. The circuit court held a hearing and, in a thorough 21-page order, denied the petition on May 27, 1993.

The state's evidence at trial tended to show that on August 25, 1984, four people were killed at the Guest Service Station near Attala, Alabama. The appellant confessed to the murders and admitted in an extrajudicial statement that he had stolen the gun used in the murders from his father's gun repair business.

The appellant raises many issues in this post-conviction proceeding that are barred from our review because they were either addressed on direct appeal or could have been but were not raised by the appellant on direct appeal. See procedural default grounds Rule 32.2(a)(4) and Rule 32.2(a)(5).

The following issues are procedurally barred from this court's review as they were either addressed on direct appeal or could have been, but were not, raised on direct appeal. Rule 32.2(a)(4) and 32.2(a)(5), Ala.R.Crim.P.

1) The appellant's claim that the court unduly restricted voir dire.

2) The appellant's claim that the court erred in not granting his motion for a change of venue.

3) The appellant's claim that he was deprived of an impartial jury.

4) The appellant's claim that the prosecutor's arguments were improper.

5) The appellant's claim that his arrest was unlawful.

6) The appellant's claim that he was convicted on the unreliable testimony of witnesses.

7) The appellant's claim that the court erred in receiving into evidence ...


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