from Jefferson Circuit Court (CC-09-1813.60)
White, currently an inmate on death row at Holman
Correctional Facility, appeals the Jefferson Circuit
Court's summary dismissal of his petition for
postconviction relief filed pursuant to Rule 32, Ala. R.
Crim. P., attacking his capital-murder convictions and
sentence of death.
2009, White was convicted of murdering Jasmine Parker during
the course of a rape and a burglary. The jury recommended, by
a vote of 9 to 3, that White be sentenced to life
imprisonment without the possibility of parole. The trial
court sentenced White to death. On direct appeal, this Court
affirmed White's convictions and remanded the case to the
trial court for it to correct its sentencing order. On return
to remand, we affirmed White's death sentence. See
White v. State, 179 So.3d 170 (Ala.Crim.App.2013). The
United States Supreme Court denied certiorari review. See
White v. Alabama, 577 U.S.__, 136 S.Ct. 365 (2015). This
Court issued a certificate of judgment on April 17, 2015.
See Rule 41, Ala. R. App. P.
April 12, 2016, White, acting pro se, timely filed Rule 32
petition. White requested in forma pauperis status.
That motion was granted, and two attorneys were appointed to
assist White in the postconviction proceedings. Appointed
counsel filed a 206-page amended petition in January 2017.
The State filed an answer to the petition and moved that it
be dismissed. The circuit court dismissed White's
petition. This appeal followed.
direct appeal, this Court set out the following facts
surrounding White's convictions:
"On the morning of July 11, 2006, Parker went to work
with her mother, Vanessa Parker, at Sharp Cleaners in
Vestavia. Parker was not employed at the cleaners; however,
she helped Vanessa on occasion. Around 3:00 p.m., Sylvia
Williams, Vanessa's coworker, drove Parker home. After
Parker got home, she called Vanessa and asked if she could go
to a Captain D's restaurant with Greg Jelks. Vanessa gave
Parker permission to go.
"Vanessa left work around 6:00 p.m. and went to a
funeral home because a friend had passed away. After leaving
the funeral home, Vanessa drove to her apartment. She arrived
at the apartment between 7:00 p.m. and 7:30 p.m. As she
entered the apartment, she called out to Parker but received
no response. At that point, Vanessa noticed that the
apartment was in disarray. The cushions on the couch were
misplaced, the telephone had been knocked from its base, and
a coffee table had been knocked over.
"Vanessa then began to walk through the apartment and
found Parker's body in a small hall area. Parker was nude
from the waist down and her shirt was pulled up, exposing her
breasts. Parker's blue jeans had been tied in a knot
around her neck and used to strangle her to death. Upon
finding Parker's body, Vanessa telephoned emergency 911.
"In response to Vanessa's call to 911,
law-enforcement officers were dispatched to the apartment.
Steve Owens, an officer with the forensic unit of the
Birmingham police department, was called to the scene to
collect evidence and diagram the scene. While at the scene,
Owens took a number of photographs and collected, among other
things: 1) a plastic fingernail that had been found next to
Parker's body; 2) a cigar tip that had been found on a
table; and 3) a cigarette butt. Parker's cellular
telephone was never found.
"Dr. Gregory G. Davis, with the Jefferson County
Coroner's Office, performed an autopsy on Parker.
According to Dr. Davis, when he began the examination,
Parker's blue jeans were tied around her neck so tightly
he could not get his finger between the blue jeans and her
neck. Dr. Davis explained that Parker had abrasions on her
neck from the blue jeans. She also had a nonlethal, five-inch
cut on her neck. Dr. Davis testified that Parker had
petechiae--ruptured blood vessels due to pressure- -under her
eyelids. According to Dr. Davis, 'petechiae [are]
something that you ... expect to see in someone who has been
strangled.' (R. 313.) Dr. Davis concluded Parker had died
as a result of asphyxia due to strangulation.
"During the autopsy, Dr. Davis swabbed Parker's
mouth, vagina, and anus to look for signs of sexual assault.
He also swabbed a stain on her leg. Initially, Dr. Davis did
not detect any semen on the swabs. However, after examining
the swabs a second time, Dr. Davis detected semen on the swab
from Parker's vagina and on the swab from her leg.
"The investigation into Parker's murder languished
until Detective Christopher Anderson, the lead detective,
realized in August 2008 that none of the evidence collected
from the crime scene or from Parker's body had been sent
to the Alabama Department of Forensic Sciences (hereinafter
'DFS') for testing. The evidence collected from the
crime scene and from Parker's body was then sent to DFS.
Nathan Rhea, a forensic scientist at DFS, tested numerous
items related to Parker's murder. According to Rhea, he
obtained a DNA profile for saliva located on the cigar tip
collected from the apartment and from the semen collected
from Parker's leg and vagina. Rhea then entered those
profiles into a State database and determined that the
profiles matched White's profile."
White, 179 So.3d at 181-82 (footnote omitted).
is appealing the circuit court's summary dismissal of his
Rule 32, Ala. R. Crim. P., petition. "The petitioner
shall have the burden of pleading and proving by a
preponderance of the evidence the facts necessary to entitle
the petitioner to relief." Rule 32.3, Ala. R. Crim. P.
32.6(b), Ala. R. Crim. P., addresses the pleading
requirements in regard to postconviction petitions and
"The petition must contain a clear and specific
statement of the grounds upon which relief is sought,
including full disclosure of the factual basis of those
grounds. A bare allegation that a constitutional right has
been violated and mere conclusions of law shall not be
sufficient to warrant any further proceedings."
addressing the scope of Rule 32.6(b), Ala. R. Crim. P., this
Court has stated:
"The burden of pleading under Rule 32.3 and Rule 32.6(b)
is a heavy one. Conclusions unsupported by specific facts
will not satisfy the requirements of Rule 32.3 and Rule
32.6(b). The full factual basis for the claim must be
included in the petition itself. If, assuming every factual
allegation in a Rule 32 petition to be true, a court cannot
determine whether the petitioner is entitled to relief, the
petitioner has not satisfied the burden of pleading under
Rule 32.3 and Rule 32.6(b). See Bracknell v. State,
883 So.2d 724 (Ala.Crim.App.2003)."
Hyde v. State, 950 So.2d 344, 356
"'Rule 32.6(b) requires that the petition
itself disclose the facts relied upon in seeking
relief.' Boyd v. State, 746 So.2d 364, 406
(Ala.Crim.App.1999). In other words, it is not the pleading
of a conclusion 'which, if true, entitle[s] the
petitioner to relief.' Lancaster v. State, 638
So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of
facts in pleading which, if true, entitle a petitioner to
relief. After facts are pleaded, which, if true, entitle the
petitioner to relief, the petitioner is then entitled to an
opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to
present evidence proving those alleged facts."
Boyd v. State, 913 So.2d 1113, 1125
(Ala.Crim.App.2003) (emphasis in original).
"'"Where a simple reading of the petition for
post-conviction relief shows that, assuming every allegation
of the petition to be true, it is obviously without merit or
is precluded, the circuit court [may] summarily dismiss that
petition."' Tatum v. State, 607 So.2d 383,
384 (Ala.Crim.App.1992), quoting Bishop v. State,
608 So.2d 345, 347-48 (Ala. 1992), quoting in turn Bishop
v. State, 592 So.2d 664, 667 (Ala.Crim.App.1991)(Bowen,
J., dissenting); see also Rule 32.7(d), Ala. R. Crim.
Boyd v. State, 913 So.2d at 1126. "An
evidentiary hearing on a [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).
sufficiency of pleadings in a Rule 32 petition is a question
of law. 'The standard of review for pure questions of law
in criminal cases is de novo. Ex parte Key, 890
So.2d 1056, 1059 (Ala. 2003).' Ex parte Lamb,
113 So.3d 686 (Ala. 2011)." Ex parte Beckworth,
190 So.3d 571, 573 (Ala. 2013).
"[A]t the pleading stage of Rule 32 proceedings, a Rule
32 petitioner does not have the burden of proving his claims
by a preponderance of the evidence. Rather, at the pleading
stage, a petitioner must provide only 'a clear and
specific statement of the grounds upon which relief is
sought.' Rule 32.6(b), Ala. R. Crim. P. Once a petitioner
has met his burden of pleading so as to avoid summary
disposition pursuant to Rule 32.7(d), Ala. R. Crim. P., he is
then entitled to an opportunity to present evidence in order
to satisfy his burden of proof."
Ford v. State, 831 So.2d 641, 644
even though this Court applied a plain-error standard of
review for White's direct appeal, the plain-error
standard does not apply to this appeal. See Ex parte
Debone, 805 So.2d 763, 766 (Ala. 2001).
"'[A] judge who presided over the trial or other
proceeding and observed the conduct of the attorneys at the
trial or other proceeding need not hold a hearing on the
effectiveness of those attorneys based upon conduct that he
observed.' Ex parte Hill, 591 So.2d 462, 463
"'"'In some cases, recollection of the
events at issue by the judge who presided at the original
conviction may enable him summarily to dismiss a motion for
postconviction relief.' Little v. State, 426
So.2d 527, 529 (Ala. Cr. App. 1983). 'If the circuit
judge has personal knowledge of the actual facts underlying
the allegations in the petition, he may deny the petition
without further proceedings so long as he states the reasons
for the denial in a written order.' Seats v.
State, 556 So.2d 1094, 1095 (Ala. Cr. App.
"Ray v. State, 646 So.2d 161, 162
(Ala.Crim.App.1994) (quoting Norris v. State, 579
So.2d 34, 35 (Ala.Crim.App.1991) (Bowen, J., dissenting)). In
this case, the judge who ruled on Bryant's petition was
the same judge who presided over Bryant's original trial
and over his second penalty-phase trial. Therefore, we find
no error on the part of the circuit court in summarily
dismissing some of Bryant's claims on the merits."
Bryant v. State, 181 So.3d 1087, 1102-03
with limited exceptions not applicable here, "[t]here
exists a long-standing and well-reasoned principle that we
may affirm the denial of a Rule 32 petition if the denial is
correct for any reason." McNabb v. State, 991
So.2d 313, 333 (Ala.Crim.App.2007). 2003). See also
Bryant v. State, 181 So.3d 1087, 1100
these principles in mind, we review the issues White raises
in his brief to this Court.
first argues that the circuit court erred in adopting the
State's proposed order summarily dismissing his
postconviction petition because, he says, the order was
written entirely by the State and "reflected a lack of
independent findings and conclusions of law."
(White's brief, p. 12.) White relies on Ex parte
Ingram, 51 So.3d 1119 (Ala. 2010), and Ex parte
Scott, [Ms. 1091275, March 18, 2011] __So. 3d __(Ala.
2011), to support this argument.
record establishes that, after the circuit court issued its
order dismissing the petition, White filed a motion to
reconsider. In that motion, White argued that the order
should be set aside because, he said, it did not reflect the
"court's independent findings and conclusions of
law." (C. 598.)
discussing the scope of the Supreme Court's holding in
Ex parte Ingram, this Court has stated:
"[T]he Alabama Supreme Court has admonished that
'appellate courts must be careful to evaluate a claim
that a prepared order drafted by the prevailing party and
adopted by the trial court verbatim does not reflect the
independent and impartial findings and conclusions of the
trial court.' Ex parte Ingram, 51 So.3d 1119,
1124 (Ala. 2010).
"In Ingram, the Supreme Court held that the
circuit court's adoption of the State's proposed
order denying postconviction relief was erroneous because, it
said, the order stated that it was based in part on the
personal knowledge and observations of the trial judge when
the judge who actually signed the order denying the
postconviction petition was not the same judge who had
presided over Ingram's capital-murder trial. '[T]he
patently erroneous nature of the statements regarding the
trial judge's "personal knowledge" and
observations of Ingram's capital-murder trial undermines
any confidence that the trial court's findings of fact
and conclusions of law are the product of the trial
judge's independent judgment....' Ingram, 51
So.3d at 1125."
Ray v. State, 80 So.3d 965, 971-72
later, the Supreme Court reconsidered the Ingram
holding in Ex parte Scott. In Scott, the
Supreme Court reversed the circuit court's judgment,
which adopted the State's answer. The Supreme Court
"Here, we do not even have the benefit of an order
proposed or 'prepared' by a party; rather the order
is a judicial incorporation of a party's pleading as the
'independent and impartial findings and conclusions of
the trial court.' [Ex parte Ingram, 51 So. 3d]
at 1124 [(Ala. 2010)]. The first and most fundamental
requirement of the reviewing court is to determine 'that
the order and the findings and conclusions in such order are
in fact those of the trial court.' Id. at 1124.
The trial court's verbatim adoption of the State's
answer to Scott's Rule 32 petition as its order, by its
nature, violates this Court's holding in Ex parte
Ex parte Scott, __So. 3d at __.
2012, the Supreme Court again addressed this issue in Ex
parte Jenkins, 105 So.3d 1250 (Ala. 2012), and clarified
its earlier decisions. In affirming the circuit court's
judgment adopting the State's proposed order, the Alabama
Supreme Court stated:
"The circumstances of this case differ from the
circumstances presented in Ex parte Ingram and
Ex parte Scott. In both of those cases it was clear
from evidence before this Court that the orders signed by the
trial court were not the product of the trial court's
independent judgment. In Ingram, that fact was clear
from the statements contained in the order regarding the
trial judge's 'personal knowledge' and
observations of Ingram's capital-murder trial when the
trial judge signing the proposed Rule 32 order did not
preside over Ingram's capital-murder trial. In Ex
parte Scott, that fact was clear from the materials
before this Court, which contained the State's responsive
pleading adopted by the trial court as its order. In this
case, however, there is nothing definitive in the record or
on the face of the order that indicates that the order is not
the product of the trial court's independent judgment.
"This Court's decision today should not be read as
entitling a petitioner to relief in only those factual
scenarios similar to those presented in Ex parte
Ingram and Ex parte Scott. A Rule 32 petitioner
would be entitled to relief in any factual scenario when the
record before this Court clearly establishes that the order
signed by the trial court denying postconviction relief is
not the product of the trial court's independent
judgment. See Ex parte Ingram."
Ex parte Jenkins, 105 So.3d at 1260.
courts have consistently held that even when a trial court
adopts verbatim a party's proposed order, the findings of
fact and conclusions of law are those of the trial court and
they may be reversed only if they are clearly
erroneous." McGahee v. State, 885 So.2d 191,
case, the proposed order adopted by the circuit court did not
suffer from the defects that were present in Ex
parte Ingram and Ex parte Scott. The
circuit judge who signed the order was the same judge who had
presided over White's trial, and the order did not
reference events outside his personal knowledge. Nor did the
circuit court adopt the State's answer as its final
order. White acknowledges that the circuit court added its
own "language regarding conclusions." (White's
brief, p. 12.) There is no indication that the order was not
the "product of the [circuit] court's independent
judgment." Ex parte Jenkins, 105 So.3d at 1260.
For the reasons set out in this opinion, we hold that the
circuit court's findings are not clearly erroneous.
Accordingly, we find no error in the circuit court's
adoption of the State's proposed order as its final order
summarily dismissing White's postconviction petition.
White is due no relief on this claim.
next argues that the circuit court erred in denying his
request for funds for expert assistance to pursue his
postconviction proceedings. White asserts that he was
entitled to state funds to "investigate, develop, and
prepare factual bases for his claims related to federal
constitutional violations." (White's brief, at p.
15.) He relies on the United States Supreme Court cases of
Ake v. Oklahoma, 470 U.S. 68 (1985), and
McWilliams v. Dunn, 582 U.S.__, 137 S.Ct. 1790
United States Supreme Court in Ake v. Oklahoma, 470
U.S. 68 (1985), first recognized that an indigent defendant
is entitled to expert assistance when his/her mental state at
the time of the offense is "seriously in question."
470 U.S. at 70. The court revisited and reaffirmed that
holding in McWilliams v. Dunn. The Supreme Court in
McWilliams v. Dunn stated:
"[N]o one denies that the conditions that trigger
application of Ake [v. Oklahoma, 470 U.S. 68, 105
S.Ct. 1087, 84 L.Ed.2d 53 (1985)] are present. McWilliams is
and was an 'indigent defendant,' 470 U.S., at 70, 105
S.Ct. 1087. See supra, at 1794. His 'mental
condition' was 'relevant to ... the punishment he
might suffer,' 470 U.S., at 80, 105 S.Ct. 1087. See
supra, at 1794-1795. And, that 'mental condition,'
i.e., his 'sanity at the time of the offense,' was
'seriously in question.' 470 U.S., at 70, 105 S.Ct.
1087. See supra, at 1794-1795. Consequently, the
Constitution, as interpreted in Ake, required the
State to provide McWilliams with 'access to a competent
psychiatrist who will conduct an appropriate examination and
assist in evaluation, preparation, and presentation of the
defense,' 470 U.S., at 83, 105 S.Ct. 1087."
582 U.S. at__, 137 S.Ct. at 1798.
the record shows that on November 14, 2016, White filed an ex
parte motion for funds for an expert to assist "in the
development and presentation of evidence in support of his
Rule 32 petition." (C. 177.) The State objected to
White's motion. White then filed a renewed motion for
funds for expert and investigative services. (C. 430.) In
this motion, White requested $17, 100 for a
neuropharmacologist; $6, 250 for a DNA expert; $12, 000 for a
mitigation expert; $5, 200 for an investigator; undisclosed
funds for a forensic psychologist; and undisclosed funds for
a clinical neuropsychologist. White noted that the required
fees for the last two experts would be forthcoming. (C.
430-52.) The State again filed an objection to White's
motion. (C. 517.) At a hearing at which this motion was
discussed, the court noted that it was denying the motion
because it would not allow a "fishing expedition to
retry or relitigate" issues. (R. 13.)
law is clear that Rule 32 petitioners are not entitled to
funds to hire experts to assist in postconviction litigation,
ex parte or otherwise .... Boyd v. State, 913 So.2d
1113 (Ala.Crim.App.2003).'" Bush v. State,
92 So.3d 121, 167 (Ala.Crim.App.2009). See also Van Pelt
v. State, 202 So.3d 707, 719
(Ala.Crim.App.2015); McGahee v. State, 885
So.2d 191, 229 (Ala.Crim.App.2003).
"This Court held that the fundamental fairness mandated
by the Due Process Clause does not require the trial court to
approve funds for experts at a postconviction proceeding.
Hubbard v. State, 584 So.2d 895, 900
(Ala.Crim.App.1991). Moreover, this Court has specifically
held that Ake [v. Oklahoma, 470 U.S. 68 (1985), ] is
not applicable in postconviction proceedings. Ford v.
State, 630 So.2d 111, 112 (Ala.Crim.App.1991),
aff'd, 630 So.2d 113 (Ala. 1993). See also Williams
v. State, 783 So.2d 108 (Ala.Crim.App.2000), aff'd,
662 So.2d 929 (Ala. 1992)(table).
"McGahee's reliance on Ex parte Moody, 684
So.2d 114 (Ala. 1996), is misplaced. In Moody, the
Alabama Supreme Court held that 'an indigent criminal
defendant is entitled to an ex parte hearing on whether
expert assistance is necessary, based on the Fifth, Sixth,
and Fourteenth Amendments to the United States
Constitution.' 684 So.2d at 120. As discussed above, for
purposes of this proceeding, McGahee is not 'an indigent
criminal defendant.' Instead, he is a convicted capital
murderer who, in Rule 32 proceedings, is a civil petitioner
with the burden of proving that he is entitled to relief on
the grounds alleged in the petition he filed. Moody
does not support McGahee's argument here. McGahee is not
entitled to any relief on this claim of error. The trial
court did not err when it denied an ex parte hearing on
McGahee's request for funds."
McGahee v. State, 885 So.2d at 229. See also
People v. Richardson, 189 Ill.2d 401, 422, 245 Dec. 109,
122, 727 N.E.2d 362, 375 (2000) ("Since a
post-conviction petitioner does not have a constitutional
right to appointed counsel ... there is no constitutional
obligation to provide post-conviction counsel with
investigative resources. ... Where no constitutional right is
implicated, the decision to appoint an expert, or to
authorize funds to hire an expert, rests within the sound
discretion of the circuit court.").
Court has held that the provisions of Ake v.
Oklahoma, do not apply to postconviction petitions or
collateral petitions. The circuit court committed no error in
denying both of White's motions for funds for experts to
assist in the postconviction proceedings. White is due no
relief on this claim.
next argues that the circuit court erred in summarily
dismissing his claims that his trial counsel's
performance at the penalty phase of his capital-murder trial
was ineffective. He lists several grounds in support of this
prevail on a claim of ineffective assistance of counsel, the
petitioner must satisfy the two-pronged test articulated by
the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). The petitioner must
show: (1) that counsel's performance was deficient, and
(2) that he was prejudiced by the deficient performance. The
Supreme Court in Strickland recognized that this
test presents a mixed question of law and fact. 466 U.S. at
"To sufficiently plead an allegation of ineffective
assistance of counsel, a Rule 32 petitioner not only must
'identify the [specific] acts or omissions of counsel
that are alleged not to have been the result of reasonable
professional judgment,' Strickland v.
Washington, 466 U.S. 668, 690, 104 S.Ct. 2052');">104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), but also must plead specific facts
indicating that he or she was prejudiced by the acts or
omissions, i.e., facts indicating 'that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.' 466 U.S. at 694, 104 S.Ct. 2052');">104 S.Ct. 2052. A
bare allegation that prejudice occurred without specific
facts indicating how the petitioner was prejudiced is not
Hyde, 950 So.2d at 356.
"'[t]he claim of ineffective assistance of counsel
is a general allegation that often consists of numerous
specific subcategories. Each subcategory is an independent
claim that must be sufficiently pleaded.' Coral v.
State, 900 So.2d 1274, 1284 (Ala.Crim.App.2004),
overruled on other grounds, Ex parte Jenkins, 972
So.2d 159 (Ala. 2005)."
Jackson v. State, 133 So.3d 420, 451
importantly, the jury recommended, by a vote of 9 to 3, that
White be sentenced to life imprisonment without the
possibility of parole. In considering the prejudice prong of
the Strickland test when a jury has not recommended
the death penalty, we have stated:
"'"Appellant's contention that his trial
counsel rendered ineffective assistance of counsel during the
penalty phase of the trial is repudiated by the fact that the
jury recommended life in this case. Lewis v. State,
398 So.2d 432 (Fla. 1981); Douglas v. State, 373
So.2d 895 (Fla. 1979)."'
"Hooks [v. State], 21 So.3d  at
791 [(Ala.Crim.App.2008)] (quoting Buford v. State,
492 So.2d 355, 359 (Fla. 1986)). See also Coleman v.
State, 64 So.3d 1210, 1224 (Fla. 2011) ('This Court
has repeatedly held that a defendant cannot demonstrate
prejudice for counsel's failure to present mitigation to
the jury, as opposed to the judge, when the jury recommended
a life sentence.' (emphasis omitted))."
Spencer v. State, 201 So.3d 573, 613
petitioner's claim is that his trial counsel should have
done something more, we first look at what the lawyer did in
fact.'" Ray v. State, 80 So.3d 965, 979
(Ala.Crim.App.2011), quoting Chandler v. United
States, 218 F.3d 1305, 1320 (11th Cir.
record of White's penalty phase shows that Dr. Allen E.
Shealy, a psychologist, testified that he interviewed White,
that he reviewed White's numerous medical records, that
he reviewed White's mental-health treatment records, that
he reviewed White's school records, and that he conducted
psychological testing on White. He testified that, after
reviewing White's school records, he found that White had
been diagnosed with a mental disorder at the age of four,
that White had been in psychiatric hospitals on several
occasions, and that White had been diagnosed with
impulse-control disorders or with attention deficit
hyperactivity disorder ("ADHD") at the age of four.
It was Dr. Shealy's opinion that White suffers difficulty
controlling his impulses and that he has an "explosive
disorder." (Trial R. 645.)
White, White's adopted father, testified at the penalty
phase that he and his wife adopted White when he was about
eight months old. (Trial R. 662.) He testified concerning the
difficulty that he and his wife had in raising White.
White, White's adopted mother, testified that White was
very active as a child and was diagnosed with ADHD when he
was four years old and was given the medication Ritalin for
that condition. She testified that between the ages of four
through his high-school years he "virtually always"
was under the care of psychiatrists or psychologists and that
he saw at least six different psychiatrists and/or
psychologists. (Trial R. 679.) At one time, she said, when
White was in middle school White was "having a little
bit of difficulty" so she took him to Children's
Hospital's Emergency room. (Trial R. 680.) Stella further
"After the psychiatrist talked to him, he said I
can't let him go.
"He said, anytime I asked him about thoughts of suicide
and if they say yes to those questions I have to admit him.
stayed in the mental hospital for ten days
and when we went to check on him, the doctor said
that the insurance company was not going to let them keep
him. They only allow the first ten days.
"So we had no choice but to take him home. And go back
to the outpatient, you know, the outpatient
treatment. And do the medication and he was on lots of
medications from the hospital.
"So we just kept doing that. Things didn't get any
better. He really needed to stay in the hospital. It just
didn't get any better."
(Trial R. 681-83.) Stella White further testified that White
had problems with the fact that he was biracial and adopted.
White argues that the circuit court erred in summarily
dismissing his claim that his trial counsel was ineffective
for failing to present evidence of his mental illness at the
penalty phase of his capital-murder trial.
White's amended petition, he pleaded the following, in
"Defense counsel failed to adequately investigate the
available evidence regarding [White's] struggles with
substance dependence. Counsel failed to adequately
investigate the manner in which Mr. White's substance
dependence impacted his mental illness. Specifically, Mr.
White's counsel failed to interview the available family
members who had information concerning Mr. White's mental
health history. Counsel did not interview Mr. White's
biological family, including his mother, Beth Lorraine Crook,
his two sisters, Bethany Crook and Caitlyn Crook, and his
younger brother. Mr. White's counsel also failed to
interview his three adopted siblings, Andrea White, Tiffani
Hambrick, and Toosdhi White, each of whom lives in the state
of Alabama. Counsel failed to interview Mr. White's
extended family on both sides of his adopted family who
reside in the state of Alabama. On his maternal side, counsel
could have interviewed Horace Felder, Gale Felder Gilky,
Valencia Felder, Jackie Felder, Albert Felder, Billie Felder,
and Carolyn Felder. On Mr. White's paternal side, counsel
could have interviewed Albert White, John White, James White,
and Dorothy Jean Trammel. Each of these people were available
and willing to talk at the time of trial and would have
provided extensive information, and persuasive testimony,
regarding Mr. White's history of mental illness.
"Mr. White's counsel failed to interview and present
testimony from any of Mr. White's foster family,
teachers, football coaches, or peers. Counsel could have
interviewed a number of individuals, including the mother of
his child, Brittany Taylor; his original foster parents, Ben
and Patty Gordon; the Gordon's son Caleb; educators Kathy
Long and Brian Cain; his former coaches; and former
supervisors Kila Carlyle and Glenn Liemback. These witnesses
were available and willing to talk at the time of trial and
would have provided extensive and persuasive testimony about
Mr. White's mental health issues."
circuit court made the following findings on this claim:
"While White has set forth many allegations supporting
this claim in the first amended Rule 32 petition, the
allegations are insufficiently pleaded. For instance, White
contends that counsel failed to present evidence concerning
his family's history of mental illness. However, White
failed to specifically plead what the family history of
mental illness is or how he was prejudiced by counsel's
failure to present this evidence. White also asserts that his
attorneys were ineffective because they failed to investigate
his struggles with substance dependence and how his substance
dependence affected his mental illness. White, however, fails
to specifically plead what substance dependence he suffers
from, what witnesses could testify to his substance
dependence, or how specifically his substance dependence
affected his mental illness. Finally, White asserts that his
attorneys failed to interview and present testimony from his
foster families, teachers, football coaches and peers
concerning his mental illness. However, White fails to
identify the names of these witnesses, what these
unidentified witnesses would say about his mental condition,
or how he was prejudiced because of counsel's failure to
call these unidentified witnesses during the penalty phase of
his trial. 'Conclusory allegations not supported by
specifics do not warrant relief.' Thomas v.
State, 766 So.2d 860, 889 (Ala.Crim.App.1998). This
allegation fails to comply with the specificity and full
factual pleading requirements of Rule 32.3 and 32.6(b), [Ala.
R. Crim. P., ]; therefore, this claim is summarily dismissed
from the first amended Rule 32 petition."
appeal, White argues that the circuit court erred in
dismissing this claim because, he says, he fully complied
with the pleading requirements of Rule 32.3, Ala. R. Crim. P.
Specifically, he argues that he provided the names of five
doctors who had previously treated White's mental
condition and attached an affidavit from one of White's
former psychologists. The State asserts that the mere
attachment of an affidavit does not comply with the full-fact
pleading requirements of Rule 32.3, Ala. R. Crim. P.
Rule 32 petitioner is not required to include attachments to
his or her petition in order to satisfy the pleading
requirements in Rule 32.3 and Rule 32.6(b)[; however, ] when
a petitioner does so, those attachments are considered part
of the pleadings." Conner v. State, 955 So.2d
473, 476 (Ala.Crim.App.2006). In this case, however, there is
no reference in the pleadings on this claim to the affidavit
and the affidavit does not state what claim it was attached
to support. (C. 274-84.) The five doctors White states he
named in his postconviction petition were not identified in
this section of White's petition but were merely named in
the introductory section of the petition. (C. 197.) Also,
White did not plead in his postconviction petition what these
doctors could have testified to in regard to mitigation.
'notice pleading' requirements relative to civil
cases do not apply to Rule 32 proceedings. Unlike the general
requirements related to civil cases, the pleading
requirements for postconviction petitions are more stringent.
...'" Washington v. State, 95 So.3d 26, 59
(Ala.Crim.App.2012) (quoting Daniel v. State, 86
So.3d 405, 410-11 (Ala.Crim.App.2011)).
"Rule 32.6(b), Ala. R. Crim. P., requires that full
facts be pleaded in the petition if the petition is to
survive summary dismissal. See Daniel [v. State, 86
So.3d 405 (Ala.Crim.App.2011)]. Thus, to satisfy the
requirements for pleading as they relate to postconviction
petitions, Washington was required to plead full facts to
support each individual claim."
Washington v. State, 95 So.3d 26, 59
(Ala.Crim.App.2012) (emphasis added). "[T]he claim of
ineffective assistance of counsel is a general allegation
that often consists of numerous specific subcategories. Each
subcategory is an independent claim that must be sufficiently
pleaded." Coral v. State, 900 So.2d
1274, 1284 (Ala.Crim.App.2004), overruled on other grounds,
Ex parte Jenkins, 972 So.2d 159 (Ala. 2005).
White listed many individuals he said could have provided
mitigation testimony, he failed to plead what each of those
individuals could have presented. White also failed to
specifically identify all of witnesses by name and instead
identified them by their title, i.e., former coaches,
teachers, or peers. "Specificity in pleading requires
that the petitioner state both the name and the evidence that
was in the witness's possession that counsel should have
discovered, but for counsel's ineffectiveness."
Daniel v. State, 86 So.3d 405, 422
(Ala.Crim.App.2011). "Conclusions unsupported by
specific facts will not satisfy the requirements of Rule 32.3
and Rule 32.6(b). The full factual basis must be included in
the petition itself." Hyde v. State, 950 So.2d
as set out above, one affidavit was attached to the
postconviction petition; that affidavit was executed by Dr.
Samuel Saxon, a clinical psychologist. Dr. Saxon stated that
he had treated White when he was young and that White had
been diagnosed with ADHD and impulse-control issues. (C.
404.) However, the evidence in this affidavit was presented
at White's sentencing hearing.
trial counsel presented evidence of his mental illness at his
sentencing hearing through the testimony of Dr. Shealy and
White's adopted mother. In fact, the mitigation evidence
was so persuasive that the jury recommended a sentence of
life imprisonment without the possibility of parole. Stella
White testified, in depth, concerning their struggles in
raising White because of his mental problems and said that
White had been diagnosed with ADHD when he was four years
old. Dr. Shealy testified that White had ADHD and
Saxon's testimony was cumulative of testimony that
White's trial counsel did ...