Corey Allen Wimbley v. State of Alabama ( 2022 )

Rel: December 16, 2022
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
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Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
CR-20-0201
_________________________
Corey Allen Wimbley
v.
State of Alabama
Appeal from Washington Circuit Court
(CC-09-170.60)
COLE, Judge.
Corey Allen Wimbley, an inmate on Alabama's death row, appeals
the circuit court's summary dismissal of his Rule 32, Ala. R. Crim. P.,
petition for postconviction relief.
CR-20-0201
Facts and Procedural History
In 2009, Wimbley was indicted for and convicted of two counts of
capital murder -- one count for killing Connie Ray Wheat during the
commission of a robbery, see § 13A-5-40(a)(2), Ala. Code 1975, and one
count for killing Wheat during the commission of an arson, see § 13A-5-
40(a)(9), Ala. Code 1975. At trial, the State's evidence showed the
following:
"On the morning of December 19, 2008, Wheat was
working alone at the Harris Grocery store, which he owned,
in Wagarville. Two women, one of whom was a longtime
friend of Wimbley's, were driving by Harris Grocery when
they saw Wimbley run out of the store and get into an
automobile driven by Juan Crayton, III. A short time later, a
customer walked into Harris Grocery to make a purchase.
She smelled gasoline and saw liquid on the floor but was
unable to locate Wheat. Other customers came into the store,
and one of them, T.J. Smith, walked behind the counter of the
store, where he found Wheat dead on the floor. Smith went
outside and telephoned emergency 911.
"Alabama State Trooper Robert Knapp was driving by
Harris Grocery and saw several people in the parking lot
gesturing at him. Trooper Knapp pulled into the parking lot
of Harris Grocery and entered the store. He smelled gasoline
and saw liquid on the floor and the counter. After looking at
Wheat's body, Trooper Knapp secured the store and contacted
his dispatcher, asking for additional law-enforcement officers
to be sent to Harris Grocery.
"Crayton drove himself and Wimbley to the home of
Earnest Lee Barnes in Mobile. After speaking outside to the
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two men, Barnes went alone into his house. When Barnes
came out, he noticed that Crayton had moved Crayton's car
from a concrete slab to a muddy area on the side of Barnes's
house. The three men then got into Barnes's car and drove to
a mall. Barnes stopped at a service station and, while
pumping gasoline into his car, received a telephone call from
his cousin, who told him that Wimbley and Crayton had 'just
done something bad up there in Courtelyou.'1 (R. 731.)
Barnes took the two men back to his house, where Crayton
and Wimbley argued about who would drive Crayton's car.
Crayton decided that he would drive the car, and Wimbley
asked Barnes to drive him to the Greyhound bus station.
Barnes drove Wimbley to the bus station, where Wimbley got
his suitcase out of Barnes's car, went inside the station, and
bought a bus ticket to Tampa, Florida.
"Barnes telephoned his cousin, with whom he had
spoken at the service station, and his cousin told him that
Wimbley and Crayton had killed someone. Barnes then went
to the McIntosh Police Department to report his contact with
Wimbley and Crayton.
"Wimbley went into a bathroom at the bus station and
changed his clothes. Later that day, he was arrested at the
bus station and transported to the Washington County jail.
"Crayton abandoned his car at a service station in
Mobile. Inside the car, officers conducting a search pursuant
to a search warrant found a box of matches and a pair of work
gloves.
"Inside Harris Grocery, law-enforcement officers found
the bullets that had passed through Wheat's body. Officers
also noticed a red liquid on the counter and saw that the liquid
had been 'slung across the floor.' (R. 683.) Officers found
struck matches and noticed that one area of the floor was
charred and that there was a 'small amount of charring on the
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counter by the register.' (R. 811.) Outside the store, officers
found a plastic bottle containing residue.
"Barnes gave officers permission to search his property.
In Barnes's backyard, officers found Wheat's driver's license,
Social Security card, and bank cards.
"Officers recovered Wimbley's suitcase from the bus
station and searched it pursuant to a search warrant. The
officers found $325 in assorted United States currency inside
the pocket of a pair of shorts in the suitcase.
"After Wimbley was arrested, he invoked his right to
counsel. Thereafter, on December 23, 2008, Wimbley
requested to speak with members of the Washington County
Sheriff's Office. Deputy Ferrell Grimes went to the jail where
he reviewed a Miranda2 form with Wimbley before Wimbley
signed it. During the interview that followed, Wimbley first
told Deputy Grimes that, on the day of the murder, he had
asked Crayton to take him to Mobile. Crayton and another
man Wimbley knew only as 'Peanut' had picked up Wimbley
and the three had gone to Creola where Crayton let Peanut
out of the car. Crayton and Wimbley then had gone to
Barnes's house. After Deputy Grimes told Wimbley that
witnesses had seen him leaving the Harris Grocery after the
shooting and that Crayton had talked with law enforcement,
Wimbley said that Crayton had picked him up the morning of
the robbery and murder and had given Wimbley words of
encouragement. Wimbley told Deputy Grimes that before
Crayton picked him up that day, Wimbley had mixed gasoline
with a Fanta soft drink in a bottle. Wimbley stated that he
took the bottle into Harris Grocery, shot Wheat, stole cash,
and then poured the mixture in the bottle throughout the
store. Wimbley also said that he first shot Wheat in the arm
and that he had poured the gasoline mixture on Wheat after
he had shot him.
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"In January 2009, officers again searched Barnes's
house. In a shed in the backyard, officers found a .38 caliber
handgun, a compact disc case, and some United States
currency.
"Dr. John Krolikowski, a senior medical examiner with
the Alabama Department of Forensic Sciences, conducted the
autopsy on Wheat. Dr. Krolikowski concluded that Wheat
had been shot three times. One bullet struck Wheat in his
right arm and shoulder before exiting his back. Another
bullet entered the right side of Wheat's chest, traveled
through his heart, and exited the left side of his chest. The
third bullet entered Wheat's back and exited his chest. The
cause of Wheat's death was multiple gunshot wounds, and the
manner of his death was homicide.
"Timothy McSpadden, a firearm and tool-mark
examiner with the Alabama Department of Forensic Sciences,
determined that the bullets recovered from Harris Grocery
had been fired from the .38 caliber handgun found in the shed
at Barnes's house.
"Gary Cartee, a Deputy State Fire Marshal with the
State Fire Marshal's Office, determined that the fire inside
Harris Grocery was intentionally set and that the cause of the
fire was the 'introduction of ignitable liquids onto the scene,
set by an open flame, a match.' (R. 799.)
"Sharee Wells, a forensic scientist with the Alabama
Department of Forensic Sciences, analyzed samples of liquids
taken from Harris Grocery and the clothes Wheat was
wearing when he was shot. Wells detected gasoline on the
pair of pants and shirt Wheat was wearing when he was shot.
She also determined that liquid found on the counter, floor,
and a shelf inside Harris Grocery and liquid taken from the
plastic bottle found in the parking lot of Harris Grocery was
gasoline.
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"The Federal Bureau of Investigation determined that
one of the shoes Wimbley was wearing at the time of his arrest
matched a shoe print officers found on a paper bag behind the
counter at Harris Grocery.
"__________________
"1Testimony demonstrated that Harris Grocery was
located at the intersection of Courtelyou Road and United
States Highway 43.
"2Miranda v. Arizona, 384 U.S. 436 (1966)."
Wimbley v. State, 191 So. 3d 176, 192-94 (Ala. Crim. App. 2014) (plurality
opinion). After the jury found Wimbley guilty of both counts of capital
murder, it recommended that he be sentenced to death. 1 The trial court
followed that recommendation.
On December 19, 2014, this Court affirmed Wimbley's capital-
murder convictions and death sentences, and, on September 25, 2015, the
Alabama Supreme Court denied his petition for a writ of certiorari. On
May 31, 2016, however, the Supreme Court of the United States vacated
this Court's judgment and remanded Wimbley's case to this Court for
further consideration in light of its decision in Hurst v. Florida, 577 U.S.
1The jury recommended that Wimbley be sentenced to death by a
vote of 11 to 1 for his capital-murder-robbery conviction, and it
recommended that he be sentenced to death by a vote of 10 to 2 for his
capital-murder-arson conviction. (Record in CR-11-0076, C. 356-57.)
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91 (2016). See Wimbley v. Alabama, 578 U.S. 1009 (2016). This Court
did so, and, on December 16, 2016, this Court again affirmed Wimbley's
capital-murder convictions and death sentences. See Wimbley v. State,
238 So. 3d 1268 (Ala. Crim. App. 2016). Wimbley again petitioned the
Alabama Supreme Court for a writ of certiorari. The Alabama Supreme
Court denied his petition on May 19, 2017. This Court issued a certificate
of judgment that same day, making Wimbley's capital-murder
convictions and death sentences final. Wimbley then petitioned the
Supreme Court of the United States for a writ of certiorari. The Supreme
Court of the United States denied his petition on October 30, 2017. See
Wimbley v. Alabama, 138 S. Ct. 385, 199 L. Ed. 2d 286 (2017).
On May 21, 2018, Wimbley filed a Rule 32 petition challenging his
capital-murder convictions and death sentence. (C. 9-127.) In his
petition, Wimbley alleged that his trial counsel were ineffective during
the "culpability phase of trial" (C. 33-86), "during the penalty phase of
trial" (C. 86-119), and "during the sentencing phase of the trial" (C. 119-
20). Wimbley also alleged that the State had "violated [his] rights to due
process of law … when it failed to disclose to [him] that one of its crucial
witnesses had reasons to falsify her testimony against him." (C. 120-24.)
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On September 9, 2018, the State moved to dismiss Wimbley's petition.
(C. 151-250.)
Wimbley then moved the circuit court for permission to amend his
petition (C. 252-56), which the circuit court granted. (C. 265.) On June
3, 2019, Wimbley filed his first amended Rule 32 petition, re-alleging the
claims that he raised in his original petition, adding new allegations to
some of the previously raised claims of ineffective assistance of counsel,
and adding a claim that "[e]volving standards of decency prohibit …
executing [him] because he is severely mentally ill." (C. 418-24.)
Additionally, at points throughout his amended petition, Wimbley asked
the circuit court for funding to hire different expert witnesses. On
October 1, 2019, the State moved to dismiss Wimbley's first amended
Rule 32 petition. (C. 436-547.)
Over a year later, the State moved the circuit court "to enter a final
order granting the State's motion to dismiss Wimbley's amended Rule 32
petition or … schedule a status hearing" in Wimbley's case. (C. 550.) The
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State also filed a proposed final order for the circuit court's
consideration. 2 (C. 553.)
On October 9, 2020, Wimbley moved the circuit court for
"extraordinary expenses for psychological evaluation services and expert
witnesses services." (C. 556.) In his motion, Wimbley asked the circuit
court "for an order authorizing the expenditure of fifty thousand dollars
($50,000) in order to have [him] evaluated by a psychologist and to retain
the services of several certain forensic experts, subject to application for
additional funds if needed." (C. 556.) The State objected (C. 562-66), and
the circuit court denied Wimbley's motion on November 5, 2020. (C. 568.)
That same day, the circuit court summarily dismissed Wimbley's first
amended petition. (C. 575-620.)
On December 3, 2020, Wimbley moved the circuit court to
reconsider its judgment (C. 621-30), but the circuit court did not rule on
Wimbley's motion. This appeal follows.
2In its motion, the State noted that its proposed order was attached.
The State's unsigned proposed order is not included in the record on
appeal. " 'It is the appellant's duty to provide this court with a complete
record on appeal.' " McCray v. State, 629 So. 2d 729, 733 (Ala. Crim. App.
1993).
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Standard of Review
A circuit court may summarily dismiss a Rule 32 petition pursuant
to Rule 32.7(d), Ala. R. Crim. P.,
"[i]f the court determines that the petition is not sufficiently
specific, or is precluded, or fails to state a claim, or that no
material issue of fact or law exists which would entitle the
petitioner to relief under this rule and that no purpose would
be served by any further proceedings."
See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);
Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.
State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992).
When reviewing a circuit court's summary dismissal of a
postconviction petition, " '[t]he standard this Court uses … is whether the
[circuit] court abused its discretion.' " Lee v. State, 44 So. 3d 1145, 1149
(Ala. Crim. App. 2009) (quoting Hunt v. State, 940 So. 2d 1041, 1049 (Ala.
Crim. App. 2005)). If the circuit court bases its decision on a " 'cold trial
record,' " however, we apply a de novo standard of review. Ex parte
Hinton, 172 So. 3d 348, 353 (Ala. 2012). "[W]hen reviewing a circuit
court's rulings made in a postconviction petition, we may affirm a ruling
if it is correct for any reason." Bush v. State, 92 So. 3d 121, 134 (Ala.
Crim. App. 2009).
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As explained below, some of the claims raised by Wimbley were
summarily dismissed because they were without merit or failed to state
a claim for relief. And some of Wimbley's claims
"were summarily dismissed based on defects in the pleadings
and application of the procedural bars in Rule 32.2, Ala. R.
Crim. P. When discussing the pleading requirements for
postconviction petitions, we have 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 petition 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 (Ala. Crim. App. 2006).
" ' "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
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provided under 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).
'[T]he procedural bars of Rule 32[.2, Ala. R. Crim. P.,] apply
with equal force to all cases, including those in which the
death penalty has been imposed.' Burgess v. State, 962 So. 2d
272, 277 (Ala. Crim. App. 2005)."
Washington v. State, 95 So. 3d 26, 38-39 (Ala. Crim. App. 2012).
We also note that, "[a]lthough on direct appeal we reviewed
[Wimbley's] capital-murder conviction[s] for plain error, the plain-error
standard of review does not apply when an appellate court is reviewing
the denial of a postconviction petition attacking a death sentence."
James v. State, 61 So. 3d 357, 362 (Ala. Crim. App. 2010) (citing Ex parte
Dobyne, 805 So. 2d 763 (Ala. 2001)). With these standards in mind, we
now turn to the arguments Wimbley raises on appeal.
Discussion
On appeal, Wimbley argues that the circuit court erred when it
summarily dismissed the claims raised in his Rule 32 petition. We
address each argument in turn.
I. Ineffective Assistance of Counsel
Wimbley first argues that the circuit court erred when it summarily
dismissed his claims of ineffective assistance of counsel during the guilt
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phase and the penalty phase of his trial and at the judicial-sentencing
hearing. To prevail on his claims of ineffective assistance of counsel,
Wimbley must show both that his counsels' performance was deficient
and that he was prejudiced by his counsels' deficient performance. See
Strickland v. Washington, 466 U.S. 668 (1984).
When reviewing claims of ineffective assistance of counsel, we are
mindful that
" ' "[j]udicial 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
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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
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.
14CR-20-0201
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).
"....
"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)."
Marshall v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App. 2014).
Additionally, we note that "the 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).
Finally, we note that this Court, in Hyde v. State, 950 So. 2d 344,
356 (Ala. Crim. App. 2006), set out the pleading requirements for claims
of ineffective assistance of counsel as follows:
" 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
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judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), but also must plead
specific facts indicating that he or she was prejudiced by the
acts or omissions, i.e., facts indicating 'that there is a
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, 80 L. Ed. 2d 674. A bare
allegation that prejudice occurred without specific facts
indicating how the petitioner was prejudiced is not sufficient."
See also Daniel v. State, 86 So. 3d 405, 416 (Ala. Crim. App. 2011). With
these principles in mind, we address Wimbley's arguments concerning
his ineffective-assistance-of-counsel claims.
I.A. Guilt-Phase Claims
I.A.1.
Wimbley first contends that the circuit court erred when it
summarily dismissed his claim that his counsel "provided ineffective
assistance when entering a not-guilty-by-reason-of-insanity [('NGRI')]
plea without any good-faith basis to do so." (Wimbley's brief, p. 27.)
Wimbley also argues, in passing, that the circuit court erred "in denying
funding to look further into Wimbley's mental state." (Wimbley's brief,
p. 28.) Wimbley's arguments on appeal do not entitle him to relief.
In his amended petition, Wimbley alleged that his counsel were
ineffective when they "filed a pretrial motion to have [him] evaluated for
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any psychological disorder. ... to support their assertion that [he] was not
guilty by reason of mental defect or disorder." (C. 307.) Wimbley alleged
that his counsel made this decision "without having secured any of Mr.
Wimbley's mental-health records," "without talking with any mental-
health professionals," "without [his] consent or knowledge," and "without
conducting any fact investigation into [his] background." (C. 307.)
According to Wimbley, his counsels' decision "allowed the State to use
their own psychologist to interview and evaluate [him]," showing the
State that he "suffered from a personality disorder with antisocial
features." (C. 308.) Wimbley alleged that he was prejudiced by his
counsels' decision to have him evaluated for the following reasons:
"Mr. Wimbley was found to be antisocial by the expert
that was appointed by the state to test him for competency
and NGRI. While [the expert] did not testify in the penalty
phase, it is clear that the State took this report to heart when
it did not offer a plea bargain to [him].
"The State's report diagnosing Mr. Wimbley with Anti-
Social Personality Disorder was in the trial court's record for
consideration when passing Mr. Wimbley's final sentence.
"Had counsel investigated Mr. Wimbley's mental state
before entering the NGRI plea, they would have learned that
[he] is not insane and is not antisocial. They would have then
known not to expose [him] to a mental examination that
nearly always provides a diagnosis of Antisocial Personality
Disorder (ASPD) for the State to use.
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"And had counsel not entered the NGRI plea and
exposed Mr. Wimbley to a state mental examination, the trial
court would not have been exposed to an erroneous ASPD
diagnosis for consideration during sentencing."
(C. 310-11 (paragraph numbering omitted).)
The circuit court summarily dismissed this claim as insufficiently
pleaded because Wimbley failed "to proffer in his petition what specific
mental health records his trial counsel failed to obtain or what
information was contained in those records that would have convinced
his counsel not to request a pre-trial evaluation," failed "to state what
mental health professionals his counsel should have consulted or what
the findings of those professionals would have been," failed "to state what
information concerning his background would have caused his counsel to
deem a pretrial evaluation unnecessary," failed "to point to anything in
the record showing that, without [the expert's] report, the State would
have extended him a plea bargain," and failed "to point to anywhere in
the record to support his assertion that [the expert's] report was
considered by [the circuit] in sentencing." (C. 580-81.)
The circuit court also summarily dismissed this claim as being
without merit because "Wimbley's trial counsel could not have known the
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extent of any mental-health problems Wimbley may have suffered
without an evaluation, the decision by his counsel to ask for an evaluation
was sensible and fell within the wide range of reasonably competent
assistance." (C. 581.) The circuit court continued:
"After considering the grounds in [trial] counsel's
motion for a pre-trial mental evaluation, this Court concluded
that 'reasonable grounds exist to question the Defendant's
competency.' ([Record in CR-11-0076,] C. 152.) Further,
Wimbley's contention that there were no reasonable grounds
for a competency evaluation is directly contradicted by other
assertions in his petition. Wimbley asserts in his petition that
he 'is severely mentally ill,' (AP 140), that '[t]here was a great
deal of mental illness' in his family, that he 'certainly
inherited some of the mental-health issues from his father,'
and that he 'was susceptible to depression and on one occasion
tried to commit suicide.' (AP 107-108.)"
(C. 581-82.)
On appeal, Wimbley briefly realleges the claims that he made in his
Rule 32 petition about his counsels' decision to have him evaluated by a
mental-health professional and makes the following argument:
"The lower court found that this claim was deficiently
plead[ed]. (C. 581.) It further found that the ineffectiveness
claims [were] without merit. (C. 582.) The trial court abused
its discretion in finding this claim without merit and in
denying funding to look further into Wimbley's mental state.
Mr. Wimbley met his burden of pleading with the sufficiency
and specificity required by Bui[ v. State, 717 So. 2d 6 (Ala.
Crim. App. 1997),] and Rules 32.3 and 32.6(b), [Ala. R. Crim.
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P.,] and, as such, the circuit court erred in summarily
dismissing this claim."
(Wimbley's brief, p. 28.)
Wimbley's argument on appeal does not satisfy the requirements of
Rule 28(a)(10), Ala. R. App. P., which requires, in relevant part, that an
argument in a brief include "the contentions of the appellant/petitioner
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 Wimbley reasserts the allegations he raised in his
Rule 32 petition, points out that the circuit court dismissed this claim of
ineffective assistance of counsel, and argues that the circuit court's
decision was incorrect because he "met his burden of pleading," Wimbley
makes no argument as to how he sufficiently pleaded his claims, and he
cites no authority showing that his allegations were sufficient to survive
summary dismissal. To be sure, Wimbley cites Bui v. State, 717 So. 2d 6(Ala. Crim. App. 1997), and Rule 32.3 and Rule 32.6(b), Ala. R. Crim. P.,
but he does not explain how Bui or how Rule 32.3 and Rule 32.6(b)
support his argument that he sufficiently pleaded this claim of ineffective
assistance of counsel. Merely citing a rule of procedure or "citing a case
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with no discussion as to its relevance is insufficient to satisfy Rule
28(a)(10)." Hodges v. State, 926 So. 2d 1060, 1075 (Ala. Crim. App. 2005).
What is more, although Wimbley argues that the circuit court
"erred in summarily dismissing this claim" (Wimbley's brief, p. 28),
Wimbley makes no argument on appeal as to why the circuit court's
summary dismissal of this claim was incorrect. "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). Even so, the circuit court
properly dismissed Wimbley's claim as insufficiently pleaded and as
without merit.
"The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy
one," requiring the petitioner to set out the "full factual basis" for his
claim. Hyde, 950 So. 2d at 356. To sufficiently plead a claim of ineffective
assistance of counsel, a petitioner must plead the full factual basis of both
the performance and prejudice prongs of Strickland.
21
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As to the performance prong of Strickland, Wimbley alleged that
his counsel were ineffective when they "filed a pretrial motion to have
[him] evaluated for any psychological disorder. ... to support their
assertion that [he] was not guilty by reason of mental defect or disorder."
(C. 307.) According to Wimbley, his counsel should not have made such
a motion "without having secured any of Mr. Wimbley's mental-health
records," "without talking with any mental-health professionals,"
"without [Wimbley's] consent or knowledge," and "without conducting
any fact investigation into [his] background." (C. 307.) But as the circuit
court noted in its order dismissing this claim, Wimbley did not allege any
facts as to what mental-health records his counsel should have examined,
he did not allege the name of any mental-health professional his counsel
should have talked to, he did not allege that he did not actually consent
to the mental evaluation, and he did not allege what aspects of Wimbley's
background his counsel should have investigated (or who they would
have talked to to glean this information).
As to the prejudice prong of Strickland, Wimbley alleged that, by
requesting a mental evaluation, counsel informed the State and the
circuit court that Wimbley had been diagnosed with "Anti-Social
22
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Personality Disorder." (C. 310.) Wimbley claimed "that the State took
this report to heart when it did not offer a plea bargain to [him]," and it
"exposed" the trial court "to an erroneous ASPD diagnosis for
consideration during sentencing." (C. 310-11.) But as the circuit court
correctly found, Wimbley failed to allege that the State would have
actually "extended him a plea bargain" had the evaluation not occurred,
and he failed to plead any facts showing "that [the expert's] report was
considered by this Court in sentencing." (C. 580-81.) At best, Wimbley's
assertion of prejudice as a result of his counsels' actions is speculative,
and " '[s]peculation is not sufficient to satisfy a Rule 32 petitioner's
burden of pleading.' Mashburn v. State, 148 So. 3d 1094, 1125 (Ala.
Crim. App. 2013)." Brooks v. State, 340 So. 3d 410, 474 (Ala. Crim. App.
2020).
Additionally, Wimbley's claim is without merit because his
allegations that his counsel moved for a pretrial mental-health
evaluation without conducting an investigation into Wimbley's mental-
health background is clearly refuted by the record on direct appeal. See
Yeomans v. State, 195 So. 3d 1018, 1031 (Ala. Crim. App. 2013) ("Thus,
23
CR-20-0201
the record on direct appeal refutes this claim, and the circuit court did
not err in summarily disposing of it. Rule 32.7(d), Ala. R. Crim. P.").
Indeed, the record on direct appeal shows that, before his
arraignment, Wimbley's counsel filed a "Motion for Hearing to Determine
that Defendant is Incompetent to Stand Trial," in which Wimbley's
counsel alleged the following:
"[Wimbley] has a history of mental illness and low
functioning intellect that renders him incompetent to stand
trial. In most of his conversations with undersigned counsel,
[Wimbley] has at times been incomprehensible and has had
the inability to rationally communicate with counsel. In
school, [Wimbley] struggled with all academic subjects,
especially reading and comprehension. [Wimbley] had had
difficulty following even simple instructions. Further,
[Wimbley] has shown limited comprehension of the nature or
significance of the courtroom. In light of [Wimbley's]
academic and medical history, and because he is not able to
understand the trial proceedings or materially assist his
attorney in his defense, he is entitled to a hearing to
determine whether he is competent to stand trial."
(Record in CR-11-0076, C. 176-77.)
In other words, before his counsel moved the circuit court for a
pretrial mental-health examination, Wimbley's counsel clearly
investigated Wimbley's history of mental-health issues and spoke with
Wimbley before filing such a motion. Because the record on direct appeal
shows that Wimbley's counsel did conduct an investigation into
24
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Wimbley's mental health before they filed a motion for a pretrial mental-
health examination, the circuit court did not err in summarily dismissing
Wimbley's claim to the contrary.
Moreover, the record on direct appeal shows that Wimbley's trial
counsels' actions were reasonable under the circumstances. When this
Court examines a claim of ineffective assistance of counsel, we must
indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Here, based on Wimbley's
allegations in his Rule 32 petition and the record before this Court in
Wimbley's direct appeal, his counsels' decision to request a pretrial
mental-health evaluation was certainly reasonable. As set out above,
Wimbley's counsel consulted with Wimbley before his arraignment and
found that those conversations were, at times, "incomprehensible" and
that Wimbley struggled to communicate with his trial counsel. Based on
their interactions with Wimbley and on Wimbley's mental-health history,
Wimbley's counsel asked the circuit court to determine whether he was
competent to stand trial. At his arraignment, Wimbley pleaded not guilty
and not guilty be reasons of mental disease or defect. (Record in CR-11-
0076, R. 20.) Thereafter, the State moved the circuit court for a mental
25
CR-20-0201
evaluation and asked that Dr. Doug McKeown be appointed by the court
to evaluate Wimbley because "[h]e has a contract with the State to do
these." (Record in CR-11-0076, R. 21.) Wimbley's counsel agreed that a
mental-health evaluation needed to be conducted and asked the circuit
court to provide him $7,500 to have his own mental-health expert, Dr.
Karen Salekin, evaluate Wimbley. (Record in CR-11-0076, R. 21.) The
circuit court found that it was "appropriate" to grant the motions for
mental-health evaluations, and it appointed both Dr. McKeown and Dr.
Salekin to evaluate Wimbley.
Because counsel based their decision to move for a pretrial mental-
health evaluation and to enter a plea of not guilty and not guilty by
reason of mental disease or defect based on their observations of Wimbley
through their conversations with him 3 and based on Wimbley's mental-
3In short, Wimbley's Rule 32 counsel claims that Wimbley's trial
counsel were ineffective for asking the circuit court to appoint a mental-
health expert to evaluate Wimbley based on their conversations with him
and based on Wimbley's mental-health history. Notably, Wimbley's Rule
32 counsel asked the circuit court for the same thing when they alleged
in Wimbley's amended petition that Wimbley is "severely mentally ill,"
that he has been "mentally ill since he was a young child," and that "[o]ne
need only spend a few hours with him to know he is suffering from mental
illness." (C. 422.) In other words, Wimbley's Rule 32 counsel alleged that
Wimbley's trial counsel were ineffective for making the same
observations and the same request as his Rule 32 counsel.
26
CR-20-0201
health history, Wimbley's trial counsel acted reasonably when they
requested that Wimbley be evaluated by a mental-health professional.
Accordingly, the circuit court did not err when it summarily dismissed
this claim.
Wimbley also argues, in passing, that the circuit court erred when
it denied his postconviction request for "funding to look further into
Wimbley's mental state." (Wimbley's brief, p. 28.) Wimbley's argument
does not satisfy Rule 28(a)(10), Ala. R. App. P., because the argument is
limited to the eight words listed above, he cites no authority showing that
he is entitled to such funding, and he makes no argument that the circuit
court's decision was incorrect. Thus, Wimbley has waived this claim.
I.A.2.
Next, Wimbley contends that the circuit court erred when it
summarily dismissed his claim that his counsel "provided ineffective
assistance when they failed to object to the State's improper
characterizations of its burden of proof during voir dire." (Wimbley's
brief, p. 28.) Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that "throughout
[Wimbley's] trial, the prosecutor misstated the law and erroneously
27
CR-20-0201
argued that a capital murder conviction could be based upon an
unintentional killing." (C. 313.) Wimbley said that the prosecutor
"incorrectly argued to each panel of the venire that an unintentional
killing during a robbery would normally qualify as capital murder" by
presenting a hypothetical example of an unintentional killing during a
robbery and claiming that it would be "capital murder under the law,"
and contrasting that hypothetical "with the charges against Mr.
Wimbley, arguing that Mr. Wimbley's offense was a more severe form of
capital murder because it included the intent to kill." (C. 313-14.)
Wimbley alleged that his counsel were ineffective because they did not
object to the prosecutor's remarks and that their failure to do so
prejudiced him because "the State's high burden of proof was their
central defense during the culpability phase." (C. 317.) The circuit court
summarily dismissed this claim because "Wimbley raised the issue
underlying this ineffectiveness claim on direct appeal," and this Court,
although concluding that the prosecutor's remarks were erroneous, held
that " 'any error in the prosecutor's statement was harmless.' " (C. 583
(quoting Wimbley, 191 So. 3d at 229).) We agree with the circuit court.
28
CR-20-0201
On direct appeal, Wimbley argued that "the prosecutor misstated
the law and misled the jury by stating that an unintentional murder
could rise to the level of capital murder." Wimbley, 191 So. 3d at 228.
This Court, reviewing the argument for plain error under Rule 45A, Ala.
R. App. P., explained:
"The record demonstrates that, during jury selection,
the prosecutor presented panels of the venire a factual
scenario of someone entering a convenience store with the
intent to rob the store and who, because of nervousness, fires
a gun and kills someone. The prosecutor asserted that such a
scenario would be capital murder.
"During penalty-phase closing argument, the prosecutor
reminded the jury:
" 'I talked to some of y'all in voir dire about
different ways that a person can be convicted of
capital murder and murder during the course of a
robbery. I talked to you about how the guy that
walks in the 7-11 [convenience store] and is
nervous, and he pulls a gun out, he's waving the
gun up in the air, the gun accidentally goes off and
kills somebody at the fountain machine. And then
he robs store.
" 'Well, ladies and gentlemen, under our law
that's capital murder. That's murder in the course
of a robbery. And in that case life without the
possibility of parole might be the proper
punishment. But that is not this case. That is
totally different. And in this case the crime was
planned, premeditated.'
29
CR-20-0201
"(R. 1073.)"
Wimbley, 191 So. 3d at 228. This Court concluded that the prosecutor's
remarks "were incorrect," but nonetheless held that "any error in the
prosecutor's statement was harmless." Id. At 229-30.
This Court's holding that the prosecutor's remarks were harmless
forecloses any finding that Wimbley's counsels' failure to object to the
State's "improper characterizations of its burden of proof during voir
dire" prejudiced him under Strickland. See, e.g., Smith v. State, 71 So.
3d 12, 26 (Ala. Crim. App. 2008) (holding that, "[b]ecause we found that
the substantive issue underlying this claim was at best harmless, Smith
cannot meet the prejudice prong of the Strickland test"); see also Gaddy
v. State, 952 So. 2d 1149, 1160 (Ala. Crim. App. 2006) ("Harmless error
does not rise to the level of prejudice required to satisfy the Strickland
test."). Because Wimbley cannot establish prejudice under Strickland,
the circuit court properly dismissed this claim.
I.A.3.
Wimbley contends that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to the State securing a promise [during voir
30
CR-20-0201
dire] from the potential jurors to not consider youth as a mitigating
factor." (Wimbley's brief, p. 30.) Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that his counsel were
ineffective for failing to object to the prosecutor's repeated argument that
Wimbley's "age should not be considered at all in sentencing." (C. 319.)
Wimbley claimed that "the prosecutor asked all of the jurors to affirm
during voir dire that a young person is just as culpable as an older
person" and then, "in closing arguments, the prosecutor held the jurors
to their commitment not to consider Mr. Wimbley's age" when the
prosecutor argued as follows:
" 'He tells you that you should take into account his age,
the age of this defendant. I asked everyone of you in voir dire
if you felt a twenty-one, twenty-two-year-old man should be
treated any differently under the law than someone who's
forty-two or sixty-two. All of you indicated to me that
shouldn't make a difference. He's just as responsible for his
actions [as] anyone else should be.' "
(C. 319 (quoting Record in CR-11-0076, R. 1084).) Wimbley claimed that
his counsel failed to object to this argument and that their failure to
object prejudiced him because "counsel could not present the youth of his
client as a persuasive mitigating factor, even though trial counsel listed
it as an anticipated mitigating circumstance." (C. 323.)
31
CR-20-0201
The circuit court summarily dismissed this claim because "Wimbley
raised the issue underlying this ineffectiveness claim on direct appeal,"
and this Court held that the complained-of comments " 'are appropriate' "
and that " 'Wimbley has not shown that any error, much less plain error,
resulted from the prosecutor's statement.' " (C. 585-86 (quoting Wimbley,
191 So. 2d at 240).) We agree with the circuit court.
On direct appeal, Wimbley argued that the State made improper
comments about Wimbley's age and that it " 'asked all of the jurors to
affirm during voir dire that a young person is just as culpable as an older
person .... Then, in closing arguments, the prosecutor held the jurors to
their commitment not to consider Mr. Wimbley's age.' " Wimbley, 191 So.
3d at 239 (quoting (Wimbley's brief, pp. 96-97)). The Court rejected
Wimbley's argument, finding that "the prosecutor merely argued that the
jury should not give any mitigating weight to Wimbley's age at the time
of the offense," that the argument was proper, and that "Wimbley has not
shown that any error, much less plain error, resulted from the
prosecutor's statement." Wimbley, 191 So. 3d at 240.
Because this Court concluded that the State's argument was
proper, "trial counsel were clearly not ineffective for not objecting to it.
32
CR-20-0201
'[C]ounsel could not be ineffective for failing to raise a baseless objection.'
Bearden v. State, 825 So. 2d 868, 872 (Ala. Crim. App. 2001)." Stanley v.
State, 335 So. 3d 1, 54 (Ala. Crim. App. 2020). Accordingly, the circuit
court did not err when it summarily dismissed this claim.
I.A.4.
Wimbley next argues that the circuit court erred when it summarily
dismissed his four claims that his counsel "provided ineffective assistance
when failing to strike multiple biased jurors for cause." (Wimbley's brief,
p. 32.) Wimbley's arguments are without merit.
First, Wimbley argues that the circuit court erred when it
dismissed his claim of ineffective assistance of counsel when his counsel
failed to strike for cause juror W.D., who he alleged in his amended
petition "was responsible for servicing Mr. Wheat's life insurance policy"
and who he alleged "continued to work with Mr. Wheat's family members
regarding the policy after Mr. Wheat's death." (C. 324.) The circuit court
dismissed this claim because Wimbley raised the issue underlying this
claim of ineffective assistance of counsel on direct appeal, and this Court
held that the circuit court " 'did not commit error in not removing W.D.
33
CR-20-0201
for cause.' " (C. 587 (quoting Wimbley, 191 So. 3d at 216).) We agree with
the circuit court.
On direct appeal, Wimbley argued that the trial court erred when
it did not remove W.D. for cause because of W.D.'s connection with
Wheat's life-insurance policy and his connection with Wheat's family.
This Court rejected Wimbley's argument, explaining:
"W.D. informed the circuit court that he knew Wheat
from going into Harris Grocery and because he had 'serviced
[Wheat's insurance] account a couple of times.' (R. 109.) W.D.
also said that he had helped Wheat's family members after
Wheat's death but that he would 'be able to render a fair and
impartial verdict' if he were selected to serve on the jury. (R.
308-09.)
"W.D. indicated that he could disregard his association
with Wheat and Wheat's family and render a fair verdict
based on the evidence and law that would be presented in the
case. Therefore, the circuit court did not commit error in not
removing W.D. for cause."
Wimbley, 191 So. 3d at 216.
Because this Court concluded on direct appeal that W.D.'s
connection with Wheat's life-insurance policy and with Wheat's family
did not mandate his removal for cause, Wimbley's counsel was not
ineffective for failing to move to strike W.D. for cause for those same
reasons. See Stanley, 335 So. 3d at 54 (holding that counsel is not
34
CR-20-0201
ineffective for failing to raise a baseless objection). Accordingly, the
circuit court did not err when it summarily dismissed this claim.
Second, Wimbley argues that the circuit court erred when it
dismissed his claim that his counsel were ineffective for failing to strike
for cause several jurors who had "close connections to employees of the
prosecutor's office." (Wimbley's brief, p. 33.) In his amended petition,
Wimbley alleged that prospective jurors C.B., F.B., A.D., W.D., R.G.,
L.H., H.J., and Wi.Wa. 4 "all had hired attorneys who now work at the
4In his amended petition, Wimbley cites page 519 from the
reporter's transcript in CR-11-0076 to support his allegation that juror
Wi.Wa. had hired an attorney who works at the prosecutor's office. That
page of the reporter's transcript, however, shows that it was juror
We.Wi., not juror Wi.Wa., who indicated that he had hired a person who
works for the district attorney to represent him in the past, before the
person was hired by the district attorney's office. To the extent that
Wimbley alleged in his petition that his counsel were ineffective for
failing to remove juror Wi.Wa. for cause because Wi.Wa. had hired
someone who worked in the prosecutor's office to represent him in a legal
matter, that claim is insufficiently pleaded. Indeed, although Wimbley
alleged in his petition that juror Wi.Wa. "had ... hired [an] attorney[] who
now work[s] at the prosecutor's office to represent [him] in a civil legal
matter," Wimbley did not allege whom Wi.Wa. had allegedly hired or how
Wi.Wa.'s business relationship with that attorney warranted his removal
for cause. To the extent that Wimbley intended to allege in his amended
petition, as he did on direct appeal, that it was juror We.Wi. who had
previously hired a person who works in the prosecutor's office to
represent him in a civil legal matter, that claim is without merit because
Wimbley raised the argument underlying this claim of ineffective
35
CR-20-0201
prosecutor's office to represent them in civil legal matters such as divorce,
child custody, adoption, estate planning, real estate and others." (C. 326.)
Wimbley also alleged that K.J.F., R.J., T.T., J.T., and C.Y. "all had close
family members who had hired members of the prosecutor's office to
perform civil legal services." (C. 326.) The circuit court dismissed
Wimbley's claims because Wimbley had raised the issues underlying
these claims of ineffective assistance of counsel on direct appeal and this
Court held that the circuit court did not commit any error when it did not
remove these jurors for cause. We agree with the circuit court.
On direct appeal, Wimbley argued that C.B., F.B., A.D., W.D., R.G.,
L.H., H.J., We.Wi., K.J.F., R.J., T.T., J.T., and C.Y. should have been
removed for cause as a result of their connections with employees in the
district attorney's office either because they had hired an attorney who
now works in the district attorney's office to represent them in a civil
legal matter or because they were friends with or had worked with a
member of the district attorney's staff. See Wimbley, 191 So. 3d at 217-
19. This Court, reviewing Wimbley's arguments for plain error, rejected
assistance of counsel on direct appeal and this Court found that there
was no error "when [the circuit court] did not remove We.Wi. for cause."
Wimbley, 191 So. 3d at 219.
36
CR-20-0201
Wimbley's arguments as to each of the above-listed jurors and held that
"the circuit court did not commit error, plain or otherwise," when it did
not remove these jurors because of their connections with the employees
in the district attorney's office. Id.Because this Court rejected the arguments underlying Wimbley's
claims of ineffective assistance of counsel as to striking for cause jurors
C.B., F.B., A.D., W.D., R.G., L.H., H.J., We.Wi., K.J.F., R.J., T.T., J.T.,
and C.Y., Wimbley's counsel was not ineffective. See Stanley, 335 So. 3d
at 54 (holding that counsel is not ineffective for failing to raise a baseless
objection). Accordingly, the circuit court did not err when it summarily
dismissed this claim.
Third, Wimbley argues that the circuit court erred when it
summarily dismissed his claim that his counsel were ineffective for
failing "to move to strike members of the venire with family ties to
employees of the prosecutor's office (although not to the individual
prosecutors trying the case)." (Wimbley's brief, p. 34.) In his amended
petition, Wimbley alleged that his counsel should have moved to strike
for cause J.B., L.B., C.B., S.G., and T.H. who, he said, "were all related to
employees of the prosecutor's office by blood or marriage," and that,
37
CR-20-0201
"[a]lthough the kinships ties were not close enough to automatically
disqualify them from service, counsel failed to question whether they
could serve fairly." (C. 328.) The circuit court dismissed this claim
because Wimbley raised the issue underlying this claim of ineffective
assistance of counsel on direct appeal and this Court held that the circuit
court "committed no error in leaving the above individuals on the venire."
(C. 589 (citing Wimbley, 191 So. 3d at 220-21).) We agree with the circuit
court.
On direct appeal, Wimbley argued that the circuit court erred
because J.B., L.B., C.B., S.G., and T.H. should have been removed for
cause due to family ties they had with employees of the district attorney's
office. See Wimbley, 191 So. 3d at 220-21. This Court, reviewing
Wimbley's argument for plain error, explained that § 12-16-150(4), Ala.
Code 1975, "does not require the removal of veniremembers related to
people employed by the prosecutor's office but not involved in the
prosecution of the case on which the veniremember might sit." Id. This
Court rejected Wimbley's arguments as to jurors J.B., L.B., C.B., S.G.,
and T.H., holding that the circuit court "did not commit error, plain or
otherwise," when it did not remove them from the venire. Id.
38
CR-20-0201
Because this Court rejected the merits of the arguments underlying
Wimbley's claims of ineffective assistance of counsel as to striking for
cause jurors J.B., L.B., C.B., S.G., and T.H., Wimbley's counsel was not
ineffective. See Stanley, 335 So. 3d at 54 (holding that counsel is not
ineffective for failing to raise a baseless objection). Accordingly, the
circuit court did not err when it summarily dismissed this claim.
Fourth, Wimbley argues that the circuit court erred when it
dismissed his claim that his counsel were ineffective for failing "to move
to strike venire members whose relationships with State witness Ferrell
Grimes impaired their ability to serve." (Wimbley's brief, p. 34.) In his
amended petition, Wimbley alleged that "[a]t least ten venire members
knew Ferrell Grimes" and that, "[o]f these, [R.G.] seemed to have an
especially close relationship with Mr. Grimes" because R.G. said on voir
dire: " 'I have known Mr. Ferrell my whole life. Our families were raised
in Midway right beside each other. I have known him forever. ' " (C. 328-
29 (quoting the record in CR-11-0076, R. 318).) The circuit court rejected
this claim because Wimbley raised the issue underlying this claim of
ineffective assistance of counsel on direct appeal and this Court held that
the circuit court "committed no error in leaving R.G. on the venire." (C.
39
CR-20-0201
589 (citing Wimbley, 191 So. 3d at 221-22).) We agree with the circuit
court.
On direct appeal, Wimbley argued that "R.G. should have been
removed for cause due to her relationship with Deputy Grimes."
Wimbley, 191 So. 3d at 221. This Court rejected that claim as follows:
"The record reflects that, during jury selection, R.G.
stated that she had known Deputy Grimes throughout her
life. She also stated that her acquaintanceship with Deputy
Grimes would not cause her 'to be [un]able to render a fair
and impartial verdict if [she was] selected' to be a juror. (R.
318.) Therefore, it was not error, plain or otherwise, for the
circuit court to leave R.G. on the venire."
Id. at 221-22.
Because this Court rejected the merits of the argument underlying
Wimbley's claim of ineffective assistance of counsel as to removing R.G.
for cause, Wimbley's counsel was not ineffective. See Stanley, 335 So. 3d
at 54 (holding that counsel is not ineffective for failing to raise a baseless
objection). Accordingly, the circuit court did not err when it summarily
dismissed this claim.5
5To the extent that Wimbley argues on appeal that the circuit court
erred when it dismissed his claim that his counsel were ineffective for
failing to move to strike the "at least ten venire members" who allegedly
knew Grimes, the circuit court properly dismissed that claim because
40
CR-20-0201
Although the circuit court properly dismissed Wimbley's four
claims of ineffective assistance of counsel because this Court addressed
the issues underlying Wimbley's claims on direct appeal, Wimbley's
claims of ineffective assistance of counsel also fail because he did not
satisfy his burden of pleading all four of his claims. In his amended
petition, Wimbley alleged facts as to why his counsel should have struck
these jurors for cause, but he failed to explain with particularity as to
how he was prejudiced by his counsels' alleged deficient performance.
The totality of Wimbley's allegation of prejudice from his counsels'
actions is as follows:
"Counsel should have made strikes for cause as it was
clear that these jurors could not be fair and impartial in
hearing the evidence as it related to both culpability and
sentencing.
"Mr. Wimbley has the right to fair and impartial jury
when considering the facts alleged in the culpability phase
and the weighing of penalties in the sentencing phase."
Wimbley failed to identify, by name, any jurors other than R.G. who knew
Grimes. Thus, Wimbley's claim was insufficiently pleaded. See, e.g.,
Washington v. State, 95 So. 3d 26, 64 (Ala. Crim. App. 2012) ("The circuit
court correctly summarily dismissed this claim because Washington
failed to identify specific jurors by name; he failed to plead what should
have been done during voir dire examination; and he failed to plead how
he was prejudiced by counsel's performance during the voir dire
examination.").
41
CR-20-0201
(C. 330-31 (paragraph numbering omitted).) Wimbley's bare allegation
that these jurors could not be fair and impartial is not sufficient to satisfy
his heavy burden of sufficiently pleading his claims under Rule 32.3 and
Rule 32.6(b), Ala. R. Crim. P. See Hyde, 950 So. 2d at 356.
Because this Court on direct appeal rejected the merits underlying
Wimbley's claims of ineffective assistance of counsel and because
Wimbley failed to sufficiently plead how he was prejudiced by his
counsels' performance, the circuit court did not err when it summarily
dismissed these claims of ineffective assistance of counsel.
I.A.5.
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to investigate an alternate suspect" -- namely, T.C. Reed
III. (Wimbley's brief, p. 35.) Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that his counsel were
ineffective when they failed to investigate Reed as a "more logical suspect
in the crime." (C. 331.) According to Wimbley, Reed "was present at the
scene of the crime," "knew Mr. Barnes," and "could have easily followed
Messrs. Wimbley and Crayton to Mr. Barnes's house and hid the
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instruments of the crime in his shed." (C. 331.) Wimbley alleged that his
counsel never investigated Reed as an alternate suspect and failed to "ask
any follow-up questions about [him] when trial testimony revealed him
sitting at the murder scene, watching." (C. 332.) Wimbley alleged that
his counsels' failure to investigate Reed as a suspect prejudiced him
because, he said, "the case against [him] was wholly circumstantial," and
if his counsel had investigated Reed "they would have learned that [he]
had a violent criminal history," that he "was at the scene of the murder,"
that he knew Mr. Barnes ("the owner of the shed in which the
instruments of the murder were discovered"), and that Reed "had the
opportunity to place those instruments after simply following Mr.
Crayton's car to Mr. Barnes'[s] house." 6 (C. 333-34.)
The circuit court summarily dismissed this claim, finding that it
was insufficiently pleaded because Wimbley did not allege "what specific
6In his amended petition, Wimbley also alleged that his counsel
"failed to investigate a person of interest who the local community had
claimed was responsible for the shooting of Mr. Wheat." (C. 334-35.)
Wimbley does not raise this argument on appeal. Thus, Wimbley has
abandoned this claim, and this Court will not consider it. See Clark, 196
So. 3d at 299 ("Those claims Clark raised in his petition but does not
argue on appeal are deemed abandoned and will not be considered by this
Court.").
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and admissible evidence his trial counsel would have discovered and
presented at trial if they had investigated Reed that would have
implicated him, directly or indirectly, in the victim's murder." (C. 590.)
The circuit court also found that Wimbley's claim was without merit
because this Court on direct appeal held that " '[t]he State's evidence,
excluding Wimbley's confession, overwhelmingly established his guilt. ' "
(C. 591 (quoting Wimbley, 191 So. 2d at 208-09).) We agree with the
circuit court.
Indeed, Wimbley in his claim that his trial counsel were ineffective
when they failed to investigate Reed as a person who could have
murdered Wheat and framed Wimbley and Crayton, fails to allege any
facts showing whom his counsel could have discovered this information
from, whether those unnamed people would have been willing to speak
with Wimbley's counsel, and whether that information, as the circuit
court correctly put it, "would have implicated [Reed], directly or
indirectly, in the victim's murder." (C. 590.) In short, Wimbley's
allegations in his amended petition establish nothing more than that,
had his counsel investigated Reed as a suspect, they would have learned
that Reed has a violent history, that he was present outside the grocery
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store the day Wheat was murdered, and that he had the opportunity to
frame Wimbley by hiding the murder weapon in Barnes's shed. Wimbley
alleged nothing that would show that, had his counsel investigated Reed
as a suspect, they would have discovered something that actually
implicated Reed in Wheat's murder, and, in turn, exculpated Wimbley.
Thus, the circuit court correctly found that this claim was insufficiently
pleaded.
Moreover, Wimbley's claim is without merit because Wimbley's
counsels' alleged decision not to investigate Reed as an alternate suspect
to Wheat's murder must be judged "on the facts of the particular case,
viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690.
Here, Wimbley cannot show that his counsel performed deficiently by not
investigating Reed as a suspect in Wheat's murder because Wimbley
admitted to law enforcement that before Crayton picked him up that day,
he had mixed gasoline with a Fanta soft drink in a bottle, he took the
bottle into Harris Grocery, shot Wheat, stole cash, and then poured the
mixture in the bottle throughout the store. Wimbley also told law
enforcement that he first shot Wheat in the arm and that he had poured
the gasoline mixture on Wheat after he had shot him. Wimbley's counsel
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was also aware of Wimbley's recorded statement to his mother, in which
Wimbley admitted that what his codefendant told law enforcement had
happened was true. (See Record in CR-11-0076, C. 569-75.) Because
Wimbley admitted his involvement in Wheat's murder to law
enforcement and in a recorded statement to his mother, his counsel
certainly acted reasonably when they did not investigate Reed as an
alternative suspect to Wheat's murder. See, e.g., Washington v. State,
95 So. 3d 26, 52 (Ala. Crim. App. 2012) (recognizing that " '[t]he
reasonableness of counsel's actions may be determined or substantially
influenced by the defendant's own statements or action s' ") (quoting
Strickland, 466 U.S. at 691). Accordingly, Wimbley is not entitled to any
relief on this claim.
I.A.6.
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to investigate a crucial witness's motivations to falsify
testimony against [him]." (Wimbley's brief, p. 36.) In his amended
petition, Wimbley alleged that Barbara Washington "was a key witness
for the State" who had "identified Mr. Wimbley as the man running from
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the store and claimed to have known him since childhood." (C. 335.)
Wimbley claimed that
"[u]pon information and belief, Ms. Washington had a
boyfriend at the time of Mr. Wimbley's trial. That boyfriend
had a pending criminal case in Washington County. He was
incarcerated for that case. And that pending case was
dismissed as a result of Ms. Washington testifying against
Mr. Wimbley."
(C. 335 (emphasis added).) Wimbley further alleged that his counsel
"never spoke with [Washington], and he never spoke with others about
her," and "never asked the State for particularized discovery on her and
her circumstances." (C. 336.) Wimbley alleged that, if his counsel had
conducted such an investigation, they would have learned about
Washington's boyfriend and that she "wanted to please the prosecution
in an effort to have that boyfriend released from incarceration." (C. 337.)
According to Wimbley, failing to investigate this information prejudiced
him because it could have been used to impeach Washington and to show
the jury that she "was not the neutral witness that the State presented."
(C. 337-38.) The circuit court summarily dismissed this claim as
insufficiently pleaded. We agree with the circuit court.
As set out above, Wimbley qualified his allegation that his counsel
were ineffective for failing to investigate Washington's motivations to
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CR-20-0201
testify falsely with the phrase that it was based "[u]pon information and
belief." (C. 335.) This Court has held that "alleging 'upon information
and belief' that something happened is nothing more than a speculative
assertion, and '[s]peculation is not sufficient to satisfy a Rule 32
petitioner's burden of pleading.' Mashburn v. State, 148 So. 3d 1094,
1125 (Ala. Crim. App. 2013)." Brooks v. State, 340 So. 3d 410, 474 (Ala.
Crim. App. 2020). What is more, as the circuit court correctly noted in
its order summarily dismissing this claim:
"Wimbley fails to plead in his petition how his counsel's
investigation or cross-examination was deficient. He does not
explain how his counsel could have known that Ms.
Washington's boyfriend had a pending criminal charge or how
they could have discovered the purported motivation behind
her testimony. Wimbley also fails to identify Ms.
Washington's alleged boyfriend by name, the specific crime for
which he was supposedly charged, or any circumstances
surrounding the resolution of his case. Additionally, Wimbley
fails to allege in his petition what specific questions his
counsel should have asked Ms. Washington, what her specific
responses would have been, or how those responses would
have been beneficial to his defense."
(C. 593-94.)
Finally, although Wimbley alleged that his counsel could have used
the information about the alleged motivation behind Washington's
testimony to impeach her and to show that she was not a "neutral
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witness," Wimbley did not allege any facts to show that the result of the
proceeding probably would have been different had his counsel
impeached Washington's testimony, especially considering the fact that
Wimbley confessed to law enforcement that he murdered Wheat.
Because Wimbley failed to sufficiently plead this claim, the circuit
court did not err when it summarily dismissed it.
I.A.7.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to consult with expert witnesses and present those
experts' testimony." (Wimbley's brief, p. 37.) According to Wimbley, if
his counsel had "properly investigated, he would have hired" a false-
confession expert, a torture and solitary-confinement expert, an arson
expert, and a shoeprint expert. (Wimbley's brief, pp. 38-40.) Wimbley's
argument is without merit.
In his amended petition, Wimbley raised the same allegations
about his counsels' effectiveness in failing to hire certain expert
witnesses. In so doing, Wimbley alleged that he "has contacted Richard
Leo and his hourly rate is three hundred and fifty dollars an hour" and
49
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he "cannot afford this rate"; that he "has contacted Stuart Grassian, who
is an expert on the effects of solitary confinement on individuals" and his
rate "is five hundred dollars an hour and he estimates at least ten hours
of work" and he "cannot afford this hourly rate"; that he "has contacted
John Lentini in Texas" whose hourly rate is "two hundred and fifty
dollars an hour" and he "cannot afford the hourly rate"; and he "has
contacted former F.B.I. analyst, William Bodziak" who "is willing to
assist in this matter" but Wimbley "cannot afford his fee.7 (C. 340-44.)
The circuit court summarily dismissed this claim as insufficiently
pleaded. (C. 594-95.) We agree with the circuit court.
"It is well settled that, to properly plead a claim that
counsel were ineffective for failing to hire an expert witness,
the petitioner must, among other things, identify by name the
expert witness his counsel should have hired, set out the
testimony that the named expert would have given, and plead
that the named expert was both willing and available to
testify at trial."
Brooks, 340 So. 3d at 437.
7In his amended petition, Wimbley lists Leo under the section titled
"False-confession expert," he lists Lentini under the section titled "Arson
Expert," and he lists Bodziak under the section titled "Shoemark-
comparison expert." (C. 340-44.)
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Here, although Wimbley identified certain experts by name that he
had consulted with, Wimbley neither alleged what those experts would
have testified to (or, importantly, that their testimony would have
actually benefitted him), nor did he allege that those expert witnesses
would have been both willing and available to testify at his trial.
Accordingly, the circuit court did not err when it summarily dismissed
this claim as insufficiently pleaded. See, e.g., Washington v. State, 95
So. 3d 26, 64 (Ala. Crim. App. 2012) (holding that a claim of ineffective
assistance of counsel for failing to hire an expert witness was
insufficiently pleaded when Washington failed to set out the content of
the expert's testimony).
I.A.8.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to the State's expert testimony that [he] was
guilty of arson." (Wimbley's brief, p. 40.) Wimbley's argument is without
merit.
In his amended petition, Wimbley alleged that his counsel were
ineffective when they failed to object to "the testimony of Gary Cartee, a
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deputy State Fire Marshall [sic]." (C. 347.) According to Wimbley, Cartee
testified that the fire at Harris Grocery " 'was intentionally set, it was
incendiar y' " (C. 348 (quoting Record in CR-11-0076, R. 799)), and that
the charring that was present indicated arson. (C. 349.) Wimbley alleged
that this testimony "does not constitute an admissible expert opinion as
to whether the factual predicate of arson exists," "constitutes the legal
conclusion that arson has been committed," and "usurped the role of the
jury by making the very factual findings required for a conviction." (C.
349.) The circuit court summarily dismissed this claim because Wimbley
had raised the issue underlying this claim of ineffective assistance of
counsel on direct appeal and this Court held that "there was no error,
much less plain error, in the admission of [the State expert's]
testimony[. ]" Wimbley, 191 So. 3d at 233. We agree with the circuit
court.
On direct appeal, Wimbley argued that the circuit court erred when
it allowed Cartee " 'to invade the province of the jury on the question of
whether Mr. Wimbley was guilty of the arson with which he was
charged .' " Wimbley, 191 So. 3d at 232 (quoting Wimbley's brief, p. 72).
This Court, reviewing Wimbley's argument for plain error, held that
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"there was no error, much less plain error, in the admission of Cartee's
testimony." Id. at 233. In the present appeal, Wimbley again argues that
his counsel were ineffective because they should have objected to Cartee's
testimony on the grounds that it "invad[ed] the province of the jury" by
allowing into evidence Cartee's "ultimate opinion that an arson
occurred." (Wimbley's brief, pp. 40, 41.)
Because this Court on direct appeal concluded that Cartee's
testimony was proper, Wimbley's "trial counsel were clearly not
ineffective for not objecting to it. '[C]ounsel could not be ineffective for
failing to raise a baseless objection.' Bearden v. State, 825 So. 2d 868,
872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54. Accordingly, the
circuit court did not err when it summarily dismissed this claim.
I.A.9.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to the State's expert's introduction of an
unreliable scientific opinion about the presence of gasoline on Mr.
Wimbley's hands and personal effects." (Wimbley's brief, p. 41.) Wimbley
is not entitled to any relief on this argument for two reasons.
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First, Wimbley's argument on appeal does not satisfy Rule
28(a)(10), Ala. R. App. P., which requires that an argument include "the
contentions of the appellant/petitioner 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." In raising his
argument on appeal, Wimbley reasserts the allegations he raised in his
amended Rule 32 petition and explains that "[t]his claim was denied by
the trial court." (Wimbley's brief, p. 42.) But Wimbley makes no
argument on appeal as to why the circuit court's summary dismissal of
this claim was incorrect. "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 v.
State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018).
Second, Wimbley's argument is without merit. In his amended
petition, Wimbley alleged that his counsel were ineffective when they
failed to "object to unreliable expert testimony when allowing the State's
expert witness to offer an opinion regarding the presence of gasoline on
Mr. Wimbley's hands and person[al] effects ... that was admittedly
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foreclosed by the scientific tests and principles on which the State's
expert was qualified to opine." (C. 353.) According to Wimbley, the
State's arson expert, Sharee Wells, testified that "she could not establish
the presence of gasoline on Mr. Wimbley's person, nor on his personal
effects, 'based upon the criteria that must be met for some substance to
be considered gasoline.' (R. 864.)" (C. 354.) But Wells also testified "that
despite her inability to satisfy the criteria adopted by the Alabama
Department of Forensic Sciences and the prevailing scientific standards
when testing liquid samples from Mr. Wimbley's hands and other
personal effects, it was her opinion that 'there is a trace amount of
gasoline present in those items. ' " (C. 352.) Wimbley alleged that this
testimony was inadmissible and that his counsel should have objected to
it. Wimbley claimed that this prejudiced him because,
"[h]ad counsel objected to keep this unreliable opinion,
the State would have been unable to link Mr. Wimbley to the
crime using physical evidence.
"But because counsel did not object, the jury was left
with the impression that unchallenged scientific evidence
showed Mr. Wimbley did pour gasoline on the day of the
murder."
(C. 359 (paragraph numbering omitted).)
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The circuit court summarily dismissed this claim because "Wimbley
raised the issue underlying this ineffectiveness claim on direct appeal"
and this Court held that there was no error in the admission of the
complained-of testimony. (C. 597.) We agree with the circuit court.
On direct appeal, Wimbley argued that the circuit court erred when
it allowed Wells " 'to offer an opinion regarding the presence of gasoline
on Mr. Wimbley's hands and personal effects ... that was admittedly
foreclosed by the scientific tests and principles on which the State's
expert was qualified to opine .' " Wimbley, 191 So. 3d at 234 (quoting
(Wimbley's brief, p. 77)). This Court reviewed Wimbley's argument for
plain error and concluded that "[t]here was no error, much less plain
error, that resulted from Wells's testimony." Id. at 235.
Because this Court on direct appeal concluded that Wells's
testimony was proper, Wimbley's "trial counsel were clearly not
ineffective for not objecting to it. '[C]ounsel could not be ineffective for
failing to raise a baseless objection.' Bearden v. State, 825 So. 2d 868,
872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54. Accordingly, the
circuit court did not err when it summarily dismissed this claim.
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I.A.10.
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to multiple hearsay statements from key State
witnesses" -- namely, "Joe Barnes[8] and Ira Roberts, who explained that
they had heard from other people that Mr. Wimbley and Juan Crayton
played a role in [Wheat's] murder." (Wimbley's brief, p. 42.) Wimbley is
not entitled to any relief on this argument.
In his amended petition, Wimbley alleged that his trial counsel
were ineffective "when they failed to object to multiple hearsay
statements from key State witnesses" -- namely, Barnes and Roberts. (C.
359-60.) Wimbley claimed that Barnes and Roberts testified "that they
had heard from other people that Mr. Wimbley and Juan Crayton played
a role in the victim's murder." (C. 360.) Wimbley said that this testimony
was hearsay, that it did not fall under any exception to the hearsay rule,
and that his counsel failed to object to this hearsay testimony. (C. 362-
8Earnest Lee Barnes, who testified at Wimbley's trial, also goes by
the name of "Joe" Barnes. (Record in CR-11-0076, R. 723.) In his
amended petition, Wimbley uses the names Joe Barnes and Earnest Lee
Barnes interchangeably to refer to the same person.
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65.) Wimbley further alleged that his counsels' failure to object to this
hearsay testimony prejudiced him. (C. 365-66.) The circuit court
summarily dismissed this claim because "Wimbley raised the issues
underlying these ineffectiveness claims on direct appeal" and this Court
found that there was no error in the admission of these statements. (C.
598.) We agree with the circuit court.
On direct appeal, Wimbley argued that the circuit court erred "by
admitting hearsay testimony" from Barnes and Roberts. Wimbley, 191
So. 3d at 235. This Court reviewed Wimbley's argument for plain error
and concluded:
"The record demonstrates that none of the statements
relayed by Roberts and Barnes was offered to prove the truth
of the matter asserted. Rather, they were offered to explain
the subsequent conduct of the hearer of the statement, i.e.,
they were offered to explain why Roberts called Barnes and
why Barnes dropped off Crayton and Wimbley and went to the
police. Accordingly, no error, much less plain error, resulted
from the admission of this testimony."
Wimbley, 191 So. 3d at 235-36.
Because this Court on direct appeal concluded that the testimony
from Barnes and Roberts was appropriate, Wimbley's "trial counsel were
clearly not ineffective for not objecting to it. '[C]ounsel could not be
ineffective for failing to raise a baseless objection.' Bearden v. State, 825
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So. 2d 868, 872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54.
Accordingly, the circuit court did not err when it summarily dismissed
this claim.
I.A.11.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to emphasize in argument that the State's witnesses did
not testify that [he] smelled like gasoline after allegedly pouring gasoline
over the decedent and his story [sic]." (Wimbley's brief, p. 44.) The
totality of this argument on appeal is as follows:
"Counsel failed to capitalize on the fact that the first
person to arrest Mr. Wimbley did not smell gasoline on him.
(R. 833-834.) Counsel failed to capitalize on the fact that the
clothes taken from Mr. Wimbley did not smell like gasoline.
(R. 827, 703.) Reasonably competent counsel must recognize
helpful facts to use in their defense theory. U.S. Const. amend
VI, XIV. See Foster v. Lockhart, 9 F.3d 722, 724, 726 (8th Cir.
1993) (counsel ineffective when failing to assert petitioner's
impotency as part of an alibi defense to sex-assault charges).
The trial court found this claim was deficiently plead and
without merit. (C. 599-600.) Mr. Wimbley met his burden of
pleading with the sufficiency and specificity required by Bui
and Rules 32.3 and 32.6(b), and, as such, the circuit court
erred in summarily dismissing this claim."
(Wimbley's brief, pp. 44-45.) This argument does not satisfy Rule
28(a)(10), Ala. R. App. P.
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Indeed, Wimbley's argument on appeal copies verbatim the
allegations and authority that he raised in his amended Rule 32 petition.
(Compare C. 366-64 with Wimbley's brief, pp. 44-45.) Although Wimbley
notes that the circuit court summarily dismissed this claim as
insufficiently pleaded and argues that his claim was sufficiently pleaded,
Wimbley makes no argument on appeal explaining how his claim was
sufficiently pleaded and he makes no argument and cites no authority as
to why the circuit court's summary dismissal of this claim was incorrect.
"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.
Even if we were to consider it, however, Wimbley's argument is
without merit. Here, the circuit court correctly concluded that Wimbley's
claim was insufficiently pleaded. In his amended petition, Wimbley
made general allegations that his counsel were ineffective because they
"failed to capitalize" on the fact that no one testified that they smelled
gasoline on Wimbley or on Wimbley's clothes when he was arrested. (C.
366.) Wimbley alleged that, if he had "used gasoline to light the store on
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fire after the murder, he would have reeked of gasoline." (C. 366.)
Wimbley claimed that,
"[h]ad trial counsel listened to witnesses' testimony
reasonably well, counsel would have noticed this glaring
defect in the State's case. Counsel could have tied these two
events together that these clothes would have reeked of
gasoline had Mr. Wimbley spilled gasoline all over the body
and the grocery store. Counsel failed to bring this point to the
attention of the jury.
"Had counsel done so, there is a reasonable probability
that the outcome of his culpability phase would have been
different."
(C. 368 (paragraph numbering omitted).)
To start, Wimbley failed to adequately plead facts showing how his
counsels' performance was deficient for failing to "capitalize" on the lack
of testimony regarding the smell of gasoline on Wimbley and his clothes
when he was arrested. As the circuit court concluded when it summarily
dismissed this claim, "Wimbley fails to plead in his petition specifically
what his trial counsel should have done with the absence of testimony
about a gasoline smell or explain why his counsel should have focused
heavily on that smell." (C. 599.) This Court has explained that " '[a] court
deciding an actual ineffectiveness claim must judge the reasonableness
of counsel's challenged conduct on the facts of the particular case, viewed
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as of the time of counsel's conduct.' Strickland, 466 U.S. at 690, 104 S.Ct.
at 2066." Reeves v. State, 226 So. 3d 711, 744 (Ala. Crim. App. 2016).
Although Wimbley alleges that his counsel should have capitalized on the
lack of testimony regarding the smell of gasoline on his person or clothes,
he does not explain why his counsel was deficient in failing to explore
that lack of testimony when his counsel (and the jury) were aware that
Wimbley had admitted to law enforcement that he had mixed gasoline
with a Fanta soft drink in a bottle, that he took the bottle into Harris
Grocery, and that he shot Wheat, stole cash, and poured the mixture in
the bottle throughout the store and on Wheat.
What is more, Wimbley's bare allegation that, if his trial counsel
had brought to the jury's attention the absence of testimony concerning
the smell of gasoline on his person or clothes, there is a reasonably
probability that the result of his proceeding would have been different
falls far short of the full-fact pleading requirements set out in Rule 32.3
and Rule 32.6(b) of demonstrating prejudice under Strickland. It is not
even clear that an individual who allegedly poured gasoline at the scene
would have gotten gasoline on himself or on his clothes. Wimbley failed
to plead precisely how his counsel could have used this information to
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affect the outcome of his trial when, as set out above, the jury was aware
that Wimbley admitted to law enforcement that he had mixed gasoline
with a Fanta soft drink in a bottle, that he took the bottle into Harris
Grocery, and that he shot Wheat, stole cash, and poured the mixture in
the bottle throughout the store and on Wheat.
Accordingly, the circuit court did not err when it summarily
dismissed this claim.
I.A.12.
Wimbley contends that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to elicit the fact that [Wimbley] is scared of handguns."
(Wimbley's brief, p. 45.) The totality of Wimbley's argument on appeal is
as follows:
"Mr. Wimbley fears handguns. Had trial counsel
interviewed his mother, they would have learned that Ms.
Wimbley kept a handgun in the glovebox of her vehicle. Ms.
Wimbley also would have confirmed that Mr. Wimbley
refused to reach into the glovebox of her vehicle because he
was scared the handgun would discharge. Here, trial counsel
did not investigate [Wimbley's] level of comfort with
handguns. Trial counsel never asked his mother about Mr.
Wimbley's comfort with handguns because they only tried to
convince her that Mr. Wimbley was guilty. Therefore, counsel
did not investigate Mr. Wimbley's case beyond looking at the
State's discovery. The trial court found that this claim was
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deficiently plead[ed] (C. 601-02). Mr. Wimbley met his burden
of pleading with the sufficiency and specificity required by
Rules 32.3 and 32.6(b), and, as such, the circuit court erred in
summarily dismissing this claim."
(Wimbley's brief, pp. 45-46.) Wimbley's argument does not satisfy Rule
28(a)(10), Ala. R. App. P.
Wimbley's argument on appeal copies verbatim the allegations
raised in his amended petition. (Compare C. 368-69 with Wimbley's
brief, pp. 45-46.) Wimbley cites no authority holding that his claim is
sufficiently pleaded or showing that the circuit court erred when it
summarily dismissed his claim. In fact, Wimbley makes no argument on
appeal as to why the circuit court's summary dismissal of this claim was
incorrect. "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, 276 So. 3d at 746.
The circuit court correctly found Wimbley's claim to be
insufficiently pleaded. Although Wimbley alleged that his counsel failed
to investigate his fear of handguns, Wimbley did not allege any facts as
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to why his trial counsels' failure was unreasonable given Wimbley's
admission to law enforcement that he shot and killed Wheat. What is
more, Wimbley's allegation of prejudice does not show how such
information would have affected the outcome of his trial when the jury
was aware that Wimbley admitted to law enforcement that he shot and
killed Wheat.
Accordingly, the circuit court did not err when it summarily
dismissed this claim.
I.A.13.
Finally, Wimbley also argues that "[t]he cumulative prejudice of
trial counsel's errors establishes Strickland prejudice during the
culpability phase of [his] trial." (Wimbley's brief, p. 45.) The totality of
Wimbley's argument on appeal is as follows:
"The court found that this claim was without merit. (C.
603.) Mr. Wimbley would argue that this should have been
sustained. The circuit court erred in summarily dismissing
this claim."
(Wimbley's brief, p. 46.) Wimbley's three-sentence argument does not
satisfy Rule 28(a)(10), Ala. R. App. P.
Although he argues that the circuit court erred when it summarily
dismissed his cumulative-prejudice claim, Wimbley makes no argument
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on appeal as to why the circuit court's summary dismissal of this claim
was incorrect. "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. Even so,
Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that the "cumulative
prejudice of trial counsel's errors establishes Strickland prejudice during
the culpability phase of Mr. Wimbley's trial." (C. 370.) According to
Wimbley, "[r]eviewing courts must view the totality of prejudice arising
from all of counsel's errors." (C. 371.) This Court has addressed the
precise issue Wimbley raises here:
" ' "[The petitioner] ... contends
that the allegations offered in support
of a claim of ineffective assistance of
counsel must be considered
cumulatively, and he cites Williams v.
Taylor, 529 U.S. 362, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000). However, this
Court has noted: 'Other states and
federal courts are not in agreement as
to whether the "cumulative effect"
analysis applies to Strickland claims';
this Court has also stated: 'We can find
no case where Alabama appellate
courts have applied the cumulative-
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effect analysis to claims of ineffective
assistance of counsel.' Brooks v. State,
929 So. 2d 491, 514 (Ala. Crim. App.
2005), quoted in Scott v. State, [262]
So. 3d [1239, 1253] (Ala. Crim. App.
2010); see also McNabb v. State, 991
So. 2d 313, 332 (Ala. Crim. App. 2007);
and Hunt v. State, 940 So. 2d 1041,
1071 (Ala. Crim. App. 2005). More to
the point, however, is the fact that even
when a cumulative-effect analysis is
considered, only claims that are
properly pleaded and not otherwise due
to be summarily dismissed are
considered in that analysis....
Therefore, even if a cumulative-effect
analysis were required by Alabama
law, that factor would not eliminate
[the petitioner’s] obligation to plead
each claim of ineffective assistance of
counsel in compliance with the
directives of Rule 32.'
" 'Taylor v. State, 157 So. 3d 131, 140 (Ala. Crim.
App. 2010).'
"White v. State, [343] So. 3d [1150], [1176] (Ala. Crim. App.
2019). Here, even '[i]f we were to evaluate the cumulative
effect of the instances of alleged ineffective assistance of
counsel, we would find that [the petitioner's] substantial
rights had not been injuriously affected, because we have
found no error in the instances argued in the petition.'
McNabb v. State, 991 So. 2d 313, 332 (Ala. Crim. App. 2007)."
Brooks v. State, 340 So. 3d 410, 468-69 (Ala. Crim. App. 2020). Thus,
with this Court having found only one error by the trial court, which this
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Court concluded was harmless, Wimbley’s cumulative-effect argument is
inapplicable and he is not entitled to relief on this claim.
I.B. Penalty Phase
Wimbley next argues that the circuit court erred when it summarily
dismissed his claims of penalty-phase ineffective assistance of counsel.
We address each argument in turn.
I.B.1.
Wimbley first argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to investigate and present evidence of [his]
nightmareish [sic] childhood and young adulthood." (Wimbley's brief, p.
46.) Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that his trial counsel
were ineffective during the penalty phase of his trial because, he said,
they "conducted no meaningful investigation into Mr. Wimbley's
background" and, if they had done so, "basic criminal-records searches
would have revealed the red flag that they needed to investigate the
horrible, incestuous secrets in the Wimbley family." (C. 374.) Wimbley
claimed that if his "counsel [had] spoken with multiple family members,
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they would have learned that the Wimbley family hides multi-
generational incest and children who are the product of incest. They
would have learned that Mr. Wimbley was part of that family secret
because a cousin raped him. This horrific sexual abuse has had a lasting
and devastating effect on Mr. Wimbley's mental health." (C. 375.)
Wimbley further alleged that, if his counsel had conducted a "minimal
investigation," then they would have "uncovered the following facts to
convince [his] jury to spare his life":
• Wimbley's grandfather, Reverend John Wimbley, Sr.,
although a well-respected pastor and a person held in
high esteem in their small community, "repeatedly [had]
sex with [his daughters] from a very early age."
Wimbley's grandfather "impregnated a number of his
daughters" and "some of the children did not survive."
Wimbley's grandfather "confessed all his sins to
Dewayne [Mitchell]" "when he was on his deathbed." (C.
383-84.)
• Wimbley was "repeatedly molested by his male cousins,"
which "shattered any view of normal sexuality" and "led
to the unhealthy relationship he shared with his first
wife." (C. 385.)
• Wimbley's father "was never a fixture" in Wimbley's life
and his father blamed "the lack of relationship on
[Wimbley]." Wimbley's father "ducked every
opportunity to be a stable and loving part of [Wimbley's]
life." Wimbley's father was also accused of "but never
convicted of raping [Wimbley's] sister," and he did not
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"protect [Wimbley] from his being molested by
Wimbley['s] cousins." (C. 377-78.)
• Wimbley "was an excellent student succeeding in every
aspect of his studies until Fifth Grade," and, thereafter,
"his grades declined until he barely graduated from
High School." Wimbley "cared nothing about school or
about his life. He coasted thru his days without a care
about what he would do or how he would support
himself. His father was not there to provide him with a
stern warning or any guidance. [Wimbley] made some
bad decisions as a result." (C. 378.)
• Wimbley's mother was "an incredible force" in his life
who did "her best to help [him] right the ship when he
got in trouble," but his father's absence was too much to
overcome and, as a result, Wimbley "has faltered and
failed thus far." (C. 378.)
• Wimbley "did not date much in high school and was not
very versed in the ways of love." After he graduated from
high school, Wimbley married "an older, more
experienced woman." Wimbley did not find out that his
wife was "the mother of four small children" until "[h]e
was sitting on the bed with his new wife, and there was
a knock on the door" and "[f]our children walked in and
asked, 'Is this our new daddy?' " (C. 378-79.)
• Wimbley "embraced the role as both father and
husband" and he "secured two jobs in order to provide
for the family." Wimbley was excited when he found out
his wife was pregnant, but he later learned that "the
child was not his son or daughter. Regardless, [he]
vowed to raise him as his own." (C. 379.)
• Wimbley also "found out that [his wife] was addicted to
crack cocaine," she "introduced [him] to this drug, and
he became addicted to crack cocaine." (C. 379.)
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• Wimbley's wife "was a prostitute" and "[e]arly in the
marriage, he caught her having sex with another man."
On several occasions, Wimbley caught her "having sex
with men for money. On the last occasion, he saw her
mid-coitus, and she laughed at his being the cuckold in
their sham marriage." (C. 379-80.)
• Wimbley's wife also got him "to commit crimes on her
behalf," including "writ[ing] a check for twelve-hundred
dollars on [a] closed account" and "stealing an
automobile that they took on a joyride." (C. 380.)
• After Wimbley caught his wife in bed with another man,
Wimbley "went to a drug store" and purchased "one
hundred and twenty Benadryl pills and a Sprite."
Wimbley "walked down the street and decided to lay
down in the street, waiting for death from the pills or
from being run over by a car. The police fortunately
intervened, and he was hospitalized." (C. 380.)
• After Wimbley and his wife separated, Wimbley
"recognized his downward spiral and became
determined to put his life back in order" and he was
"accepted in Concordia College in Selma, Alabama"
where he would be attending college with his friend,
Juan Crayton." (C. 381.)
• Before Wheat was murdered, Wimbley "was freed from
cocaine, although using marijuana and ecstasy on a
much more frequent basis. But finally, he had a plan."
• On the day Wheat was murdered, Wimbley and Crayton
"decided they wanted to smoke marijuana but [they]
lack[ed] rolling papers." So the two decided to go to
Wheat's store. When Wimbley went into the store, "[h]e
saw [Wheat] on the floor. [Wimbley] went to see if he
was alive. He stood next to the body and checked for
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signs of life as best he could. Mr. Wheat was dead, and
[Wimbley] was terrified." So Wimbley "ran out of the
store and got into the car. Had he not been high on
ecstasy he most likely would have called the police."
Wimbley's being high on ecstasy "made him paranoid
and unable to rationally think. He panicked and ran.
One of the reasons he panicked was that he had
warrants for a probation violation. A normal person not
under the influence of ecstasy would not tie the two
things together. [Wimbley] felt he would be blamed for
this on top of the violation and he panicked." (C. 381-
82.)
• Wimbley "told [Crayton] that they needed to leave
quickly. They went to buy some weed as this experience
had frightened the both of them. They went to Edward
Barnes['s] house to buy weed. They stayed for a period
of time and then [Crayton] took [Wimbley] to the Mobile
bus station. He was arrested there, and his life changed
forever." (C. 382.)
• "There was a great deal of mental illness and sadness
that surrounded [Wimbley's] family." And
"[o]ccasionally the mental illness in the Wimbley family
was a byproduct of the incestuous relationships." After
Wimbley's grandfather "had raped his daughter Catina,
she fell into a deep depression and attempted suicide.
Certainly, periods of mourning followed [Wimbley]'s
aunts when they miscarried or still-birthed the
genetically mutated children of an unholy act." (C. 385.)
• "Schizophrenia runs in the Wimbley family. Mr.
Wimbley's family believes that [Wimbley's father] is
schizophrenic. Mama Tiensy was diagnosed with the
disorder and suffered for years from it. [Wimbley]'s
cousins and other members of the family have mental-
health issues as well." (C. 386.)
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• Wimbley "certainly inherited some of the mental-health
issues from his father. [Wimbley] was susceptible to
depression and on one occasion tried to commit suicide."
(C. 386.)
The circuit court summarily dismissed Wimbley's claim because,
among other reasons, Wimbley's claim was insufficiently pleaded. (C.
604.) The circuit court explained:
"Although Wimbley pleads some details about his background
that he contends his trial counsel should have introduced, he
entirely fails to identify any witnesses in his petition who
would have testified about each of the details about his life.
He also fails to allege sufficient facts to show that these
unnamed witnesses would have been available and willing to
testify at his trial. Alabama caselaw mandates that such
information must be included in the petition for a claim to be
sufficiently pleaded."
(C. 604.) We agree with the circuit court.
In his brief on appeal, Wimbley again alleges that his counsel were
ineffective "when they failed to investigate and present evidence of [his]
nightmarish childhood and young adulthood." (Wimbley's brief, p. 46.)
The circuit court correctly concluded that Wimbley's ineffective-
assistance-of-counsel claim was insufficiently pleaded. As the circuit
court noted, Wimbley failed "to identify any witnesses in his petition who
would have testified about each of the details about his life" and he failed
to plead "facts to show that these unnamed witnesses would have been
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available and willing to testify at his trial." (C. 604.) Although Wimbley
mentioned some individuals by name in his laundry list of mitigation
evidence he says his counsel should have found and presented to the jury,
Wimbley's brief mention of people in his amended petition (for example,
Jacqueline Wimbley, John "Junior" Wimbley, Sharice, and Juan Crayton)
without also specifically alleging that those people would have actually
spoken with Wimbley's trial counsel and were both willing and able to
testify at Wimbley's trial does not satisfy the pleading requirements of
Rule 32.3 and Rule 32.6(b). We have explained:
" 'The "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
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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).
"Although 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 at 356."
White v. State, 343 So. 3d 1150, 1168 (Ala. Crim. App. 2019).
Here, Wimbley pleaded details about events in his past and in his
family history and, in so doing, mentioned some people by name.
Wimbley, however, did not plead any facts that these people would have
actually spoken with Wimbley's trial counsel (particularly when the
mitigation evidence denigrates Wimbley's wife and would require family
members to expose what Wimbley calls "horrible family secrets"). See,
e.g., Daniel v. State, 86 So. 3d 405, 416 (Ala. Crim. App. 2011) ("Assuming
Daniel's assertions are true, Daniel failed to plead what evidence counsel
could have uncovered that would have discredited Jackson's testimony or
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that Jackson would have even spoken to Daniel's attorneys, given that
Daniel's entire defense was that Jackson, and not he, committed the
double homicide."). Additionally, Wimbley failed to plead any facts that
these people would have actually been willing and able to testify during
the penalty phase of his trial. See, e.g., Mashburn v. State, 148 So. 3d
1094, 1154 (Ala. Crim. App. 2013) ("Although Mashburn alleged that his
counsel should have presented evidence that he comforted his nephews
and was protective and caring to one his cousins, Mashburn did not allege
that either his nephews or his cousin were willing and able to testify on
his behalf, nor did he identify any other witnesses who would have
testified to these facts."). Thus, the circuit court properly dismissed this
claim. 9
9To the extent that Wimbley alleged that his counsel were
ineffective for failing to conduct "basic criminal-records searches" and to
the extent he realleges that claim on appeal, the circuit court properly
dismissed that claim as insufficiently pleaded because Wimbley failed to
identify with any specificity what (or whose) records his counsel should
have found. Additionally, to the extent that Wimbley argues on appeal
that the circuit court erred when it denied his request for funding, that
claim is without merit. See, e.g., Boyd v. State, 913 So. 3d 1113, 1124 n.
5 (Ala. Crim. App. 2003) ("We note that this court in Williams v. State,
783 So. 2d 108, 113-14 (Ala. Crim. App. 2000), held that Rule 32
petitioners are not entitled to funds to hire experts to assist in
postconviction litigation. See also McGahee v. State, 885 So. 2d 191, 229
(Ala. Crim. App. 2003).").
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Moreover, the circuit court correctly concluded that Wimbley's
allegations about his father being absent and his allegations about his
wife were cumulative to evidence presented during the penalty phase of
his trial. (C. 605.) The circuit court also correctly concluded that
Wimbley's allegation that his counsel failed to present "mitigation"
evidence of Wimbley's narrative of how he "simply wandered into the
store while high on ecstasy" and discovered Wheat's body would not have
been admissible. (C. 606 (citing Ex parte Lewis, 24 So. 3d 540, 543 (Ala.
2009) (holding that "residual doubt" evidence is not admissible during a
capital-murder penalty phase because it "is not a factor about the
defendant's character or record or any circumstances of the offense").
Furthermore, the circuit court and correctly concluded that Wimbley's
alleged mitigation evidence about "Wimbley's great-grandmother and the
Wimbley family during 'the days and years of white supremacy in
southern Alabama' ..., is irrelevant to Wimbley's character or the
circumstances of the offense." (C. 607.)
I.B.2.
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
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when they failed to object to the State urging the jury to impose death to
punish Mr. Wimbley's family." (Wimbley's brief, p. 58.) Wimbley's
argument does not entitle him to any relief for two reasons.
First, Wimbley's argument on appeal does not satisfy Rule
28(a)(10), Ala. R. App. P. Although Wimbley reasserts on appeal the
allegations that he raised in his amended Rule 32 petition, (Wimbley's
brief, pp. 58-59), he makes no argument as to why the circuit court's
summary dismissal of this claim was incorrect. In fact, Wimbley does not
even mention in his argument on appeal that the circuit court summarily
dismissed this claim. "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.
Second, Wimbley's argument is without merit. In his amended
petition, Wimbley alleged that his counsel were ineffective "when they
failed to object to the State urging the jury to impose death to punish Mr.
Wimbley's family." (C. 390.) Wimbley claimed that, during closing
argument, "the prosecutor argued that although life without parole
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might be an adequate punishment for Mr. Wimbley, it would not
adequately punish his family" and "asserted that Mr. Wimbley's family
should have to suffer the same way the victim's family suffered." (C. 390.)
Wimbley said that those arguments "were unconstitutional and
improper" and that his counsel should have objected. (C. 391.)
The circuit court summarily dismissed this claim because Wimbley
"raised the issue underlying this ineffectiveness claim on direct appeal"
and this Court held that "the prosecutor's statement was a reply to
arguments made by defense counsel. As such, no error, much less plain
error occurred.' " (C. 609 (quoting Wimbley, 191 So. 3d at 329).) We agree
with the circuit court.
On direct appeal, Wimbley argued "that the prosecutor improperly
argued that the jury should recommend a sentence of death to punish
Wimbley's family. According to Wimbley, during penalty-phase rebuttal
argument the prosecutor 'asserted that Mr. Wimbley's family should
have to suffer the same way the victim's family suffered.' (Wimbley's
brief, at 94.)" Wimbley, 191 So. 3d at 238-39. This Court, reviewing
Wimbley's argument for plain error, held that the comment was a proper
reply to comments made by Wimbley’s trial counsel and that there was
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"no error, much less plain error," with the prosecutor's remarks. Id. at
239.
Because this Court on direct appeal concluded that the prosecutor's
argument was proper, Wimbley's "trial counsel were clearly not
ineffective for not objecting to it. '[C]ounsel could not be ineffective for
failing to raise a baseless objection.' Bearden v. State, 825 So. 2d 868,
872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54. Accordingly, the
circuit court did not err when it summarily dismissed this claim.
I.B.3.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to the elected District Attorney personally
vouching for the propriety of the death penalty." (Wimbley's brief, p. 59.)
Wimbley's argument is without merit and it does not entitle him to any
relief.
In his amended petition, Wimbley alleged that his counsel were
ineffective "when they failed to object to the elected District Attorney
personally vouching for the propriety of the death penalty." (C. 395.)
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Wimbley alleged that his counsel should have objected to the following
statement:
" 'I have been a prosecutor since 1994. During that seventeen
years, this is the first time that I have ever stood before a jury
and asked that jury to do what I am about to ask you to do,
that is, to recommend a sentenced of death to [the circuit
judge].' "
(C. 395 (quoting Record in CR-11-0076, R. 1002).) Wimbley said that this
comment "could have no other effect than to inform the jury that the
elected District Attorney had reached the conclusion that death was the
appropriate sentence for Mr. Wimbley." (C. 396.) Wimbley further
claimed that the "prosecutor's comments misstated the law, were
misleading to the jury, and skewed the juror's analysis towards a death
sentence." (C. 400.)
The circuit court summarily dismissed this claim because "Wimbley
raised the issue underlying this ineffectiveness claim on direct appeal"
and this Court found that there was no error in the prosecutor's
comments. (C. 610.) We agree with the circuit court.
On direct appeal, Wimbley, citing the same portion of the
prosecutor's argument that he cites in his amended petition, argued that
" 'the prosecutor in [his] trial improperly vouched for the propriety of a
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death sentence in [his] case' and improperly gave his personal opinion
that a sentence of death was appropriate." Wimbley, 191 So. 3d at 236.
This Court rejected Wimbley's argument as follows:
"[I]t is clear that the prosecutor was not giving a personal
opinion regarding the death sentence or vouching for a
sentence of death. Rather, the prosecutor was properly
arguing in favor of a sentence of death and properly
reminding the jury of the gravity of its penalty-phase role.
Therefore, this Court finds no error, plain or otherwise, in the
prosecutor's comments. Rule 45A, Ala. R. Crim. P."
Wimbley, 191 So. 3d at 237.
Because this Court on direct appeal concluded that the complained-
of argument was proper, Wimbley's "trial counsel were clearly not
ineffective for not objecting to it. '[C]ounsel could not be ineffective for
failing to raise a baseless objection.' Bearden v. State, 825 So. 2d 868,
872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54. Accordingly, the
circuit court did not err when it summarily dismissed this claim.
I.B.4.
Wimbley argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
when they failed to object to the State's incorrect, unconstitutional
argument that unintentional killings are capital murder in Alabama."
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(Wimbley's brief, p. 60.) This argument does not entitle Wimbley to any
relief for two reasons.
First, Wimbley's argument on appeal does not satisfy Rule
28(a)(10), Ala. R. App. P. In raising his argument on appeal, Wimbley
reasserts the allegations that he raised in his amended Rule 32 petition,
notes that the circuit court concluded that his claim was without merit,
and claims that he is entitled to "[c]ollateral relief" because "these
comments denied [him] his right to due process, a reliable sentencing,
and a fair trial before an impartial jury, pursuant to the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution,
the Alabama Constitution, and Alabama law." (Wimbley's brief, pp. 60-
61.) But Wimbley makes no argument on appeal and cites no authority
showing how the circuit court's summary dismissal of this claim was
incorrect. "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.
Second, even if Wimbley's argument had complied with Rule
28(a)(10), it is without merit. In his amended petition, Wimbley alleged
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that his counsel were ineffective "when they failed to object to the State's
incorrect, unconstitutional argument that unintentional killings are
capital murder in Alabama." (C. 401.) Wimbley alleged the prosecutor
made this argument in voir dire and repeated it during the penalty-phase
closing argument. (C. 401.) The circuit court summarily dismissed this
claim because "Wimbley raised the issue underlying this ineffectiveness
claim on direct appeal" and this Court found that any error in the
prosecutor's comments was “harmless.” (C. 611.) We agree with the
circuit court.
On direct appeal, Wimbley argued "that the prosecutor misstated
the law and misled the jury by stating that an unintentional murder
could rise to the level of capital murder. Specifically, Wimbley argue[d]
that a capital-murder conviction requires the State to prove specific
intent to kill; therefore, the prosecutor's argument that an unintentional
murder can be capital murder was erroneous." Wimbley, 191 So. 3d at
228. This Court, reviewing Wimbley's argument for plain error,
concluded that the prosecutor's comments were erroneous, but held that
"any error in the prosecutor's statement was harmless." Id. at 229.
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This Court's holding on direct appeal that the prosecutor's
statement was harmless error forecloses any finding that Wimbley's
counsel's failure to object to the State's "improper characterizations of its
burden of proof during voir dire" prejudiced him under Strickland. See,
e.g., Smith, 71 So. 3d at, 26 (holding that, "[b]ecause we found that the
substantive issue underlying this claim was at best harmless, Smith
cannot meet the prejudice prong of the Strickland test"); and Gaddy, 952
So. 2d at 1160 ("Harmless error does not rise to the level of prejudice
required to satisfy the Strickland test."). Because Wimbley cannot
establish prejudice under Strickland, the circuit court properly dismissed
this claim.
I.B.5.
Finally, Wimbley contends that the circuit court erred when it
summarily dismissed his claim that his counsel "provided ineffective
assistance when they failed to object to the State's argument that the jury
promised during voir dire to not consider Mr. Wimbley's youth as a
mitigating factor." (Wimbley's brief, p. 61.) The totality of Wimbley's
argument is as follows:
"The court found that this was without merit and is
denied. (C. 613.) That decision, however, was in error. Age is
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always a mitigating factor. See Eddings v. Oklahoma, 455
U.S. 104 (1982). Therefore, counsel's failure to object
constituted ineffective assistance of counsel."
(Wimbley's brief, p. 61.)
Wimbley's argument on appeal does not satisfy Rule 28(a)(10), Ala.
R. App. P. Although Wimbley argues that his counsel was ineffective and
that the circuit court denied his claim and sets out the general
proposition of law that "[a]ge is always a mitigating factor," this Court
has explained:
" 'Rule 28(a)[(10)], ... requires parties to include in their
appellate briefs an argument section with citations to
relevant legal authorities and to portions of the record relied
on in their claims for relief.' Hamm v. State, 913 So. 2d 460,
486 (Ala. Crim. App. 2002). 'The purpose of Rule 28, Ala. R.
App. P., outlining the requirements for appellate briefs, is to
conserve the time and energy of the appellate court and to
advise the opposing party of the points he or she is obligated
to make.' Ex parte Borden, 60 So. 3d 940, 943 (Ala. 2007). ...
" 'Authority supporting only "general propositions of
law" does not constitute a sufficient argument for reversal.'
Hodges v. State, 926 So. 2d 1060, 1074 (Ala. Crim. App. 2005).
We conclude by recognizing that arguments that do not
comply with Rule 28(a)(10), Ala. R. App. P., are deemed
waived."
Hooks v. State, 141 So. 3d 1119, 1123-24 (Ala. Crim. App. 2013).
Here, Wimbley's argument on appeal does not provide this Court
with sufficient authority showing how the circuit court erred when it
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summarily dismissed this claim. Accordingly, Wimbley's argument fails
to satisfy Rule 28(a)(10), Ala. R. Crim. P. Even had it satisfied Rule 28,
however, Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that his counsel were
ineffective when they "failed to object to the State's argument that the
jury promised during voir dire to not consider Mr. Wimbley's youth as a
mitigating factor." (C. 404.) The circuit court summarily dismissed this
claim because "Wimbley raised the issue underlying this ineffectiveness
claim on direct appeal" and this Court held that the prosecutor's
statements were not error. (C. 612-13.) We agree with the circuit court.
On direct appeal, Wimbley argued that the prosecutor made an
improper comment during the penalty phase closing argument to hold
"the jurors to their commitment [in voir dire] not to consider Mr.
Wimbley's age." Wimbley, 191 So. 3d at 239. This Court, reviewing
Wimbley's claim for plain error, held that
"the prosecutor merely argued that the jury should not give
any mitigating weight to Wimbley's age at the time of the
offense. Those comments are appropriate in 'our adversarial
system of criminal justice, [where a] prosecutor seeking a
sentence of death may properly argue to the jury that a death
sentence is appropriate.' Vanpelt, 74 So. 3d at 91.
Consequently, Wimbley has not shown that any error, much
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less plain error, resulted from the prosecutor's statement.
Rule 45A, Ala. R. App. P."
Wimbley, 191 So. 3d at 240.
Because this Court on direct appeal concluded that the complained-
of argument was appropriate, Wimbley's "trial counsel were clearly not
ineffective for not objecting to it. '[C]ounsel could not be ineffective for
failing to raise a baseless objection.' Bearden v. State, 825 So. 2d 868,
872 (Ala. Crim. App. 2001)." Stanley, 335 So. 3d at 54. Accordingly, the
circuit court did not err when it summarily dismissed this claim.
I.C. Sentencing Phase
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that his counsel "provided ineffective assistance
during the sentencing phase." (Wimbley's brief, p. 61.) The totality of
Wimbley's argument on appeal is as follows:
"After learning that their preparation was insufficient
during the penalty phase, Mr. Wimbley’s trial counsel was
required to investigate their client's background to make a
persuasive case for a life sentence. But counsel did not, so
they did not present any meaningful arguments for a life
sentence at the sentencing phase. The court found that this
was deficiently plead[ed] and therefore denied. (C. 615.) Mr.
Wimbley met his burden of pleading with the sufficiency and
specificity required by Bui and Rules 32.3 and 32.6(b), and, as
such, the circuit court erred in summarily dismissing this
claim."
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(Wimbley's brief, pp. 61-62.) Wimbley's argument does not satisfy Rule
28(a)(10), Ala. R. App. P.
Although Wimbley argues that his counsel should have
investigated further into Wimbley's background and presented that
information to the circuit court at sentencing and argues that his claim
was sufficiently pleaded, Wimbley makes no argument on appeal and
cites no authority showing how the circuit court's summary dismissal of
this claim was incorrect. "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. Even so, Wimbley's argument is without merit.
In his amended petition, Wimbley incorporated by reference the
mitigation evidence, he said, his counsel should have discovered before
the penalty phase of his trial and alleged that his counsel were ineffective
because they failed "to conduct any additional investigation or prepare a
meaningful sentencing strategy after the jury's death recommendation."
(C. 412.) Wimbley claimed that his counsel’s failure to investigate
prevented them from presenting “any meaningful arguments for a life
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sentence.” (C. 412.) The circuit court summarily dismissed Wimbley's
claim, finding that it was insufficiently pleaded because "Wimbley cites
no legal authority to this Court to support the proposition that his trial
counsel were required to conduct additional investigations following the
jury's recommendation of death. Because he does not cite any authority,
Wimbley has failed to clearly state any proper ground for relief." (C. 615.)
The circuit court did not err when it summarily dismissed this claim.
In State v. Mitchell, [Ms. CR-18-0739, Feb. 11, 2022] ___ So. 3d ___,
___ (Ala. Crim App. 2022), this Court reversed the circuit court's
judgment in a Rule 32 petition, in which the circuit court concluded that
Mitchell's trial counsel were ineffective when they failed to present
additional mitigation evidence at the sentencing hearing before the trial
court. This Court explained:
"[U]nder Alabama's capital-sentencing scheme in effect
at the time of Mitchell's trial and sentencing, this Court in
Boyd v. State, 746 So. 2d 364, 398 (Ala. Crim. App. 1999),
held: 'Section 13A-5-47, Ala. Code 1975, does not provide for
the presentation of additional mitigation evidence at
sentencing by the trial court. Therefore, trial counsel did not
err in failing to do so.' (Emphasis added.) Although in
Woodward v. State, 123 So. 3d 989, 1034 (Ala. Crim. App.
2011), this Court characterized that holding in Boyd as 'obiter
dictum,' six months before the decision in Woodward (and five
years after Mitchell's trial), this Court reaffirmed Boyd in
Miller v. State, 99 So. 3d 349, 424 (Ala. Crim. App. 2011),
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quoting with approval the following from the trial court's
order denying relief: ' "[T]rial counsel could not be ineffective
for failing to present additional mitigation evidence during
the sentencing hearing because [former] 'Section 13A-5-47,
Ala. Code 1975, does not provide for the presentation of
additional mitigation evidence at sentencing by the trial
court.' Boyd v. State, 746 So. 2d 364, 398 (Ala. Crim. App.
1999)." ' Simply put, it would not have been unreasonable for
Mitchell's counsel to rely on this Court's holding in Boyd, and
the circuit court thus erred in concluding that trial counsel
was ineffective for not presenting additional mitigating
evidence at the separate sentencing hearing before the trial
court. Cf. State v. Tarver, 629 So. 2d 14, 18-19 (Ala. Crim.
App. 1993) ('Counsel's performance cannot be deemed
ineffective for failing to forecast changes in the law.').
State v. Mitchell, ___ So. 3d at ___ (footnote omitted).
Wimbley's trial began in August 2011, which was one month after
this Court released its decision in Miller v. State, 99 So. 3d 349 (Ala.
Crim. App. 2011), in which this Court reaffirmed its earlier holding in
Boyd v. State, 746 So. 2d 364, 398 (Ala. Crim. App. 1999), that § 13A-5-
47, Ala. Code 1975, does not provide for the presentation of additional
mitigation evidence at sentencing by the trial court. Wimbley's trial was
also held about three months before this Court released its decision in
Woodward v. State, 123 So. 3d 989, 1034 (Ala. Crim. App. 2011), which
cast some doubt on its holding in Boyd. The judicial sentencing hearing
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and imposition of Wimbley’s sentence occurred two months before
Woodward was decided.
Here, as in Mitchell, Wimbley's trial counsel was not ineffective for
failing to present additional mitigation evidence to the trial court during
the judicial sentencing hearing when Boyd and Miller both held that his
counsel could not present additional argument on mitigation evidence
that was not presented at the penalty phase of Wimbley's trial.
Accordingly, Wimbley's claim that his counsel were ineffective for failing
to present additional mitigation evidence is without merit, and the circuit
court did not err when it summarily dismissed this claim.
II. Cumulative Prejudice of Counsels' Deficient Performance
Next, Wimbley raises a two-sentence argument that the circuit
court erred when it failed to "view the totality of prejudice arising from
all counsel's errors." (Wimbley's brief, p. 62.) Wimbley's argument does
not satisfy Rule 28(a)(10), Ala. R. App. P., and this Court will not consider
it.
III. Failure to Disclose
Wimbley next argues that the circuit court erred when it summarily
dismissed his claim that "State violated [his] rights to due process of law
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… when it failed to disclose to [him] that one of its crucial witnesses had
reasons to falsify her testimony against him." (Wimbley's brief, p. 63.)
Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that the State had
withheld evidence from him; namely, that "the State did not disclose that
one of its key witnesses, Barbara Washington, had reason to falsify her
testimony." (C. 417.) Wimbley alleged as follows:
"Upon information and belief, Ms. Washington had a
boyfriend at the time of Mr. Wimbley's trial. That boyfriend
had a pending criminal case in Washington County. He was
incarcerated for that case. And that pending case was
dismissed because of Ms. Washington testifying against Mr.
Wimbley."
(C. 417.) Wimbley claimed that this "information is material because it
impeaches the motivations of a key state witness" who "saw Mr. Wimbley
running away from Harris Grocery Store around the time of the murder."
(C. 417.) Wimbley said that, if the State had "disclosed that Ms.
Washington had reasons to be biased toward the State, Mr. Wimbley
would have impeached her and exposed that she was not a neutral
witness. The evidence against Mr. Wimbley would have been thinner."
(C. 418.)
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The circuit court summarily dismissed Wimbley's claim, in part, as
follows:
"The Court finds that this Brady[ v. Maryland, 373 U.S.
83 (1963),] claim fails to meet the specificity and full fact
pleading requirements of Rules 32.3 and 32.6(b), Ala. R. Crim.
P. The Alabama Court of Criminal Appeals has held that
'alleging "upon information and belief" that something
happened is nothing more than a speculative assertion, and
"[s]peculation is not sufficient to satisfy a Rule 32 petitioner's
burden of pleading." ' Brooks, [340 So. 3d at 474] (citation
omitted). Wimbley also fails to plead in his petition when he
learned the State suppressed evidence concerning Ms.
Washington's motive to testify. See Id. (holding that Brooks
failed 'to plead sufficient facts to show that a Brady violation
occurred, which includes an allegation of when the petitioner
learned of the withheld or suppressed evidence'). Further,
Wimbley fails to identify Ms. Washington's alleged boyfriend
by name, the specific crime for which he was supposedly
charged, or any circumstances surrounding the resolution of
his case."
(C. 618.) We agree with the circuit court.
As the circuit court pointed out, Wimbley failed to set out a full
factual basis for his claim that the State withheld impeachment evidence
from him in two ways. First, although Wimbley alleged that the State
had withheld impeachment evidence concerning Washington's motive to
testify against him at trial, Wimbley qualified his allegation with the
phrase "upon information and belief." As the circuit court noted, this
Court has held that "alleging 'upon information and belief' that
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something happened is nothing more than a speculative assertion, and
'[s]peculation is not sufficient to satisfy a Rule 32 petitioner's burden of
pleading.' Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App.
2013)." Brooks, 340 So. 3d at 474. Second, Wimbley failed to plead any
facts to show that he discovered this information about Washington after
his trial -- that is, he failed to plead that this information was unknown
to him before and/or during his trial. See Brooks, 340 So. 3d at 474
(holding that, to sufficiently plead a Brady claim, a Rule 32 petitioner
must plead facts showing when he or she learned of the withheld
evidence). "Although, pursuant to the holding in Ex parte Beckworth,
190 So. 3d 571 (Ala. 2013), [Wimbley] was not required to plead sufficient
facts to establish a newly discovered evidence claim or plead sufficient
facts to overcome the grounds of preclusion set out in Rule 32.2(a)(3) and
(5), [Wimbley] still had to plead sufficient facts to show that a Brady
violation occurred, which includes an allegation of when the petitioner
learned of the withheld or suppressed evidence." Brooks, 340 So. 3d at
474. Because Wimbley failed to sufficiently plead his claim, the circuit
court did not err when it summarily dismissed it.
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IV. Cruel and Unusual Punishment
Finally, Wimbley argues that the circuit court erred when it
summarily dismissed his claim that he "is severely mentally ill" and that
"[e]volving standards of decency prohibit [the State] under the Eighth
Amendment's prohibition against cruel and unusual punishment from
executing [him] because he is severely mentally ill." (Wimbley's brief, p.
65.) Wimbley's argument is without merit.
In his amended petition, Wimbley alleged that he "is severely
mentally ill," and that "those who suffer from severe mental illness
should be a class of which execution is not possible." (C. 418-19.)
Wimbley claimed that "evolving standards of decency require that we add
to the list of those who cannot be executed, the severely mentally ill,"
which, he said, "would be an extension of Roper[ v. Simmons, 543 U.S.
551 (2005)], Panetti[ v. Quartermen, 551 U.S. 930 (2007)], and Atkins[ v.
Virginia, 536 U.S. 304 (2002)]." (C. 419-20.) Although Wimbley alleged
that he "is severely mentally ill" and that "[o]ne need only spend a few
hours with him to know he is suffering from mental illness" (C. 422),
Wimbley also alleged that he "cannot fully develop this claim" until the
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circuit court provided him with $8,500 to pay Dr. John Fabian to evaluate
him. (C. 424-27.)
The circuit court summarily dismissed Wimbley's claim as
precluded under Rule 32.2(a)(3) and Rule 32.2(a)(5), Ala. R. Crim. P.,
because it could have been, but was not, raised either at trial or on direct
appeal. 10 (C. 619.) The circuit court did not err when it dismissed this
claim.
This Court has held that severely mentally ill people who are
nevertheless competent are eligible for the death penalty. See, e.g.,
Dearman v. State, [Ms. CR-18-0060, Aug. 5, 2022] ___ So. 3d ___, ___
(Ala. Crim. App. 2022) (holding that Dearman's argument that he suffers
from "severe mental illness" did not render his death sentence
unconstitutional); and Keaton v. State, [Ms. CR-14-1570, Dec. 17, 2021]
___ So. 3d ___, ___ (Ala. Crim. App. 2021) (holding that Keaton's
argument that she suffers from bipolar disorder and post-traumatic
10In its order, the circuit court also held that Wimbley was not
entitled to $8,500 to hire Dr. Fabian. (C. 619.) Wimbley does not
challenge that portion of the circuit court's judgment on appeal. Thus,
we will not consider it. See Bryant v. State, 181 So. 3d 1087, 1121 (Ala.
Crim. App. 2011) ("Because none of these claims are argued by Bryant in
his brief on appeal, they are deemed abandoned and will not be
considered by this Court.").
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stress disorder did not render her death sentence unconstitutional). As
set out above, Wimbley alleged generally that he is "severely mentally
ill." (C. 418.) Wimbley did not allege, however, that his unidentified
severe mental illness rendered him either insane, intellectually disabled,
or incompetent. Thus, Wimbley's allegation that he is severely mentally
ill and that his death sentence violates the Eighth Amendment to the
United States Constitution is without merit. Accordingly, the circuit
court did not err when it summarily dismissed this claim.
What is more, the circuit court correctly concluded that Wimbley's
allegation is a constitutional claim that is nonjurisdictional and subject
to the grounds of preclusion set out in Rule 32.2, Ala. R. Crim. P. See,
e.g., McNair v. State, 706 So. 2d 828, 854 (Ala. Crim. App. 1997) ("The
appellant's contention that his death sentence should be vacated because
his execution would constitute cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments was precluded
because it could have been but was not raised at trial or on appeal. Rule
32.2(a)(3) and (5)."). Because Wimbley could have raised this claim at
trial or on appeal, but did not, the circuit court correctly concluded that
Wimbley's claim was precluded under Rule 32.2(a)(3) and Rule 32.2(a)(5).
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Even so, Wimbley's claim was insufficiently pleaded. As set out
above, in his amended petition, Wimbley alleged generally that he is
"severely mentally ill." (C. 418.) Wimbley did not allege that he suffers
from any specific severe mental illness, he did not allege that he has ever
been diagnosed with a severe mental illness, and he did not allege that
his unidentified severe mental illness renders him unable to " 'rational[ly]
understand[]' why the State seeks to impose" the death penalty on him,
see Madison v. Alabama, 139 S. Ct. 718, 722 (2019) (quoting Panetti v.
Quarterman, 551 U.S. 930, 959 (2007)). Because Wimbley failed to
sufficiently plead his claim that his death sentence is unconstitutional,
the circuit court did not err when it summarily dismissed this claim.
Conclusion
Based on these reasons, the judgment of the circuit court is
affirmed.
AFFIRMED.
Windom, P.J., and McCool and Minor, JJ., concur. Kellum, J.,
concurs in the result.
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