Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. 

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Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-2023-0953

_________________________

Craig L. Newton

v.

State of Alabama

Appeal from Macon Circuit Court

(CC-01-49.60)

KELLUM, Judge.

The appellant, Craig L. Newton, appeals the Macon Circuit Court's

summary dismissal of his petition for postconviction relief filed pursuant 

to Rule 32, Ala. R. Crim. P., attacking his capital-murder conviction and 

sentence of death.
CR-2023-0953

2

In April 2006, Newton was convicted of murdering Charles Whatley 

during the course of a robbery, a murder defined as capital by § 13A-5-

40(a)(2), Ala. Code 1975; of arson in the first degree, see § 13A-7-41, Ala. 

Code 1975; and of theft of property in the first degree, see § 13A-8-3(b), 

Ala. Code 1975. The jury recommended, by a vote of 10 to 2, that Newton 

be sentenced to death for the capital-murder conviction and the circuit 

court sentenced Newton to death. Newton was sentenced to 15 years in 

prison for the arson conviction and to 10 years in prison for the theft 

conviction. 

In October 2009, this Court affirmed Newton's convictions and 

sentences on direct appeal. See Newton v. State, 78 So. 3d 458 (Ala. 

Crim. App. 2009). The Alabama Supreme Court and the United States 

Supreme Court denied certiorari review. See Ex parte Newton, (No. 

1090213, August 19, 2011); Newton v. Alabama, 565 U.S. 1205 (2012). 

This Court issued the certificate of judgment on August 19, 2011. See

Rule 41, Ala. R. App. P.

On August 14, 2012, Newton filed a timely Rule 32, Ala. R. Crim. 

P., petition attacking his convictions. See Rule 32.6(a), Ala. R. Crim. P.

This petition was filed by the Equal Justice Initiative ("EJI"). One month 
CR-2023-0953

3

later, EJI moved to stay the proceedings stating that an out-of-state 

attorney was going to represent Newton and that EJI wished to 

withdraw. (C. 133.) In September 2012, New York attorney Joseph J. 

Perkovich filed a notice of appearance as new counsel representing 

Newton. In this motion, Perkovich stated that he would move for 

admission pro hac vice so that he could represent Newton in the case. (C. 

151.) In September 2012, Newton moved for a status conference. (C. 

154.) 

The record shows no action on the petition was taken until March 

2020, when a notice of appearance was filed by a new-to-the-case

assistant attorney general. (C. 156.) That same month the parties filed

a joint motion for a status conference. (C. 161.) In June 2020, Perkovich 

filed an application for admission to practice pro hac vice in the State of 

Alabama. (C. 186.) Newton then moved for discovery and funds to secure 

the services of experts. After several continuances and other delays, the 

case was set for a status conference in April 2023. (C. 328.) After the 

status hearing, the circuit issued an order setting a deadline on which to 

file amendments. (C. 387.)
CR-2023-0953

4

On July 31, 2023, Newton filed an amended petition for 

postconviction relief. The State filed its response to that petition and 

argued that the issues in the petition were insufficiently pleaded or 

procedurally barred.1 (C. 470.) On October 19, 2023, the postconviction

court issued an order dismissing the amended petition. (C. 553.) On 

November 1, 2023, the court set aside its October 19 order after finding

that Newton had not been timely served with the order of dismissal.2 On 

that same day, the circuit court issued the same order dismissing the

petition. (C. 570.) Newton then filed a timely notice of appeal to this 

Court.

On direct appeal, this Court quoted the circuit court's findings of 

fact:

"'During the evening of April 30, 2001, the 

victim, Charles Clarence Whatley, and Chaundra 

1The Alabama Supreme Court in Ex parte Clemons, 55 So. 3d 348, 

356 (Ala. 2007), held that the procedural bars in Rule 32, Ala. R. Crim. 

P., are not jurisdictional and that to prevent waiver the State must plead

the application of the procedural bars. It further recognized that only in 

extraordinary situations may a procedural bar be overcome by an 

appellate court acting sua sponte. In its answer to Newton's petition, the 

State pleaded the procedural bars in Rule 32, Ala. R. Crim. P.

2The postconviction court retained jurisdiction to modify the 

judgement for 30 days after the judgment was entered. See Loggins v. 

State, 910 So. 2d 146, 147 (Ala. Crim. App. 2005)
CR-2023-0953

5

Alexander got together and started smoking crack 

cocaine at Alexander's residence. ... [O]n the 

morning of May 1, 2001, they ran out of drugs and 

started looking for more. While looking for drugs 

they went to a residence in Tuskegee, Alabama, 

and encountered the Defendant, Craig Newton. 

[Newton] said he could take them to get some more 

drugs.

"'On the way to get the drugs, victim, 

Alexander and [Newton] stopped at the residence 

of the victim. Once at Whatley's residence, 

[Newton] demanded that the victim give him all of 

his money and tell him where the guns were in the 

house. [Newton] also instructed Alexander to tie 

the victim up with an electrical cord.

"'When the victim tried to free himself from 

the cord, [Newton] put a bag over the victim's head 

in an attempt to suffocate him. When he began to 

free himself from the plastic bag, [Newton] then 

poured gasoline or lighter fluid on his head and set 

the victim on fire while continuing to demand the 

whereabouts of the victim's weapons and money. 

The codefendant testified that the victim had 

extinguished the fire on himself when [Newton]

approached the victim, put a pistol to the side of 

his head and shot him. Victim died from a gunshot 

wound to the head.

"'[Newton] and Alexander loaded at least 

four rifles and/or shotguns and other 

miscellaneous items from the house onto the 

victim's truck and left the residence. They 

returned to the location where the victim and 

Alexander had picked up [Newton] and unloaded 

the weapons and other items. Milton Anderson 

was at this residence and assisted in unloading the 
CR-2023-0953

6

weapons. He saw [Newton] and Alexander and 

heard them arguing about how to divide up the 

property. [Newton] also told Anderson what he 

had done.

"'The victim's residence was severely 

damaged by fire. The victim's body was also 

severely burned and was only able to be identified 

through the use of dental records.

"'Chaundra Alexander entered a plea of 

guilty to the reduced charge of murder for her role 

in the death of the victim, Charles Clarence 

Whatley, and is the codefendant of this 

defendant.'"

Newton v. State, 78 So. 3d at 463.3 

Standard of Review

As stated above, Newton appeals the postconviction court's order 

summarily dismissing his petition for postconviction relief filed pursuant 

to Rule 32, Ala. R. Crim. P. Newton filed the petition in the circuit court 

of the county where he was convicted, and he bears the sole burden of 

pleading his claims. 

"The petitioner shall have the burden of pleading and 

proving by a preponderance of the evidence the facts 

necessary to entitle the petitioner to relief. The state shall 

have the burden of pleading any ground of preclusion, but 

3This Court has taken judicial notice of the record in Newton's 

direct appeal. See Nettles v. State, 731 So. 2d 626, 629 (Ala. Crim. App. 

1998).
CR-2023-0953

7

once a ground of preclusion has been pleaded, the petitioner 

shall have the burden of disproving its existence by a 

preponderance of the evidence."

As this Court stated in Boyd v. State, 913 So. 2d 1113 (Ala. Crim. 

App. 2003):

"'Rule 32.6(b)[, Ala. R. Crim. P.,] requires that the 

petition itself disclose the facts relied upon in seeking relief.'

Boyd v. State, 746 So. 2d 364, 406 (Ala. Crim. App. 1999). In 

other words, it is not the pleading of a conclusion 'which, if 

true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 

So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the allegation 

of facts in pleading which, if true, entitle a petitioner to relief. 

After facts are pleaded, which, if true, entitle the petitioner to 

relief, the petitioner is then entitled to an opportunity, as 

provided in Rule 32.9, Ala. R. Crim. P., to present evidence 

proving those alleged facts."

Boyd, 913 So. 2d at 1125.

The burden of pleading in a postconviction proceeding, which is 

considered civil in nature, is not the same as the burden of pleading in a 

civil action. Indeed, the burden as it relates to postconviction petitions 

has been characterized as a heavy burden. Hyde v. State, 950 So. 2d 344, 

356 (Ala. Crim. App. 2006).

"Although postconviction proceedings are civil in 

nature, they are governed by the Alabama Rules of Criminal 

Procedure. See Rule 32.4, Ala. R. Crim. P. 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 
CR-2023-0953

8

postconviction petitions are more stringent. ...' 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, supra. 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).

Moreover, a postconviction court may summarily dismiss a petition 

where the pleadings are insufficient. 

"If 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, the court 

may either dismiss the petition or grant leave to file an 

amended petition. Leave to amend shall be freely granted. 

Otherwise, the court shall direct that the proceedings 

continue and set a date for hearing."

Rule 32.7(d), Ala. R. Crim. P.

" '"Where a simple reading of the petition for postconviction relief shows that, assuming every allegation of the 

petition to be true, it is obviously without merit or is 

precluded, the circuit court [may] summarily dismiss that 

petition."' Bishop v. State, 608 So. 2d 345, 347-48 (Ala. 1992) 

(emphasis added) (quoting Bishop v. State, 592 So. 2d 664, 

667 (Ala. Crim. App. 1991) (Bowen, J., dissenting)). See also 

Hodges v. State, 147 So. 3d 916, 946 (Ala. Crim. App. 2007) (a 

postconviction claim is 'due to be summarily dismissed [when] 

it is meritless on its face')."
CR-2023-0953

9

Bryant v. State, 181 So. 3d 1087, 1102 (Ala. Crim. App. 2011).

"'[T]he sufficiency of pleadings in a Rule 32 petition is a 

question of law. "The standard of review for pure questions of 

law in criminal cases is de novo. Ex parte Key, 890 So. 2d 

1056, 1059 (Ala. 2003)."' Ex parte Beckworth, [190 So. 3d 571 

(Ala. 2013)] (quoting Ex parte Lamb, 113 So. 3d [686] at 689

[Ala. 2011)]). 'Legal conclusions are never accorded a 

presumption of correctness on appellate review.' Ex parte 

Cain, 838 So. 2d 1020, 1026 (Ala. 2002) (citing Ex parte 

Perkins, 646 So. 2d 46, 47 (Ala. 1994)). 'When applying the 

de novo standard of review, this Court is not obligated to rely 

on the same analysis as that employed by the trial court.'

State v. C.M., 746 So. 2d 410, 414 (Ala. Crim. App. 1999) 

(citing Ex parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997))."

Stallworth v. State, 171 So. 3d 53, 66 (Ala. Crim. App. 2013).

Last, "[o]n direct appeal we reviewed the record for plain error; 

however, the plain-error standard of review does not apply to a Rule 32 

proceeding attacking a death sentence." Ferguson v. State, 13 So. 3d 418, 

424 (Ala. Crim. App. 2008).

With these principles in mind, we review the issues raised by 

Newton in his brief to this Court.

I.

Newton first argues that the postconviction court erred in denying 

him leave to amend his postconviction petition. In a three-paragraph 

argument in his brief to this Court, Newton asserts that, although 
CR-2023-0953

10

amendments to postconviction petitions are within the discretion of the 

postconviction court, those amendments "should be freely granted" and

"only grounds such as actual prejudice or undue delay will support a trial 

court's refusal to allow, or to consider, an amendment to a Rule 32 

petition." (Newton's brief at pp. 13-14.) He relies on the Alabama 

Supreme Court's decision in Ex parte Rhone, 900 So. 2d 455 (Ala. 2004), 

to support his argument. 

In discussing its holding in Rhone, the Alabama Supreme Court has 

stated:

"[A] petitioner does not have the unfettered right to file 

endless amendments to a Rule 32 petition. The right to 

amend is limited by the trial court's discretion to refuse to 

allow an amendment if the trial court finds that the petitioner 

has unduly delayed filing the amendment or that an 

amendment unduly prejudices the State. Such an exercise of 

the trial court's discretion would certainly be appropriate, for 

example, if, on the eve of an evidentiary hearing, a Rule 32 

petitioner filed an amendment that included new claims of 

which the State had no prior notice and as to which it was not 

prepared to defend.

"We emphasize that the concepts of 'undue delay' and 

'undue prejudice' as discussed in this opinion and in Ex parte 

Rhone apply to the trial court's management of its docket and 

to the petitioner's attention to his or her case."
CR-2023-0953

11

Ex parte Jenkins, 972 So. 2d 159, 163 (Ala. 2005). See also Ex parte 

Apicella, 87 So. 3d 1150 (Ala. 2011); Ex parte Woods, 957 So. 2d 583 (Ala. 

2006).

In Rhone, the Court recognized that amendments to postconviction 

petitions should be freely allowed unless those amendments will result 

in undue delay of the postconviction proceedings. The Court also 

specifically noted that Rhone had moved to amend his petition to add 10

additional claims of ineffective assistance of counsel and that, after the 

petition had been denied, Rhone filed a motion to alter, amend or vacate 

the order of dismissal so that the postconviction court could address those 

additional amended claims. 

However, in this case, the record shows that Newton's original 

petition was filed in August 2012. New counsel filed a notice of 

appearance in September 2012. No filings were made from September 

2012 until March 2020, when a joint motion for a status conference was 

filed. Counsel then filed a lengthy amended petition in July 2023. At the 

conclusion of the 68-page amended petition, in the request-for-relief 

section, Newton asked that he be allowed to "amend this petition." (C. 
CR-2023-0953

12

458.) The record shows that no formal motion to amend the petition or

any other reference was made to amending the pleadings. 

The record further shows that in April 2023, the postconviction

court issued an order that stated, in part: "Deadline to file any 

amendment(s) of pleadings is July 28, 2023. The Court notes this matter 

has been pending over a decade; therefore, absent exceptionally, 

extraordinary good cause, no extension will be granted, and the case will 

issue ruling on whatever matters are pending on July 28, 2023." (C. 387.) 

Newton was given leave to file an amended petition and did file an 

amended petition in July 2023. (C. 391.) That petition was addressed in 

the postconviction court's order of dismissal. 

Unlike the defendant in Rhone, Newton did not file a separate 

motion to amend his petition, nor did he file a postjudgment motion 

addressing the postconviction court's failure to allow the petition to be 

amended a second time. Also, the original petition was filed in 2012 and 

the first amended petition was filed in July 2023. Based on the length of 

time that had elapsed in this case and the fact that an amended petition 

had been filed and considered by the postconviction court, we cannot say 

that the postconviction court abused its discretion in setting a time 
CR-2023-0953

13

within which to file any amended pleadings. Accordingly, we find that 

Newton is due no relief on this claim.

II.

Newton next argues that the postconviction court erred in denying 

his motions for discovery and for funds for investigative and expert 

resources for his postconviction proceedings. Specifically, he argues that 

he requested discovery in the form of records from various agencies 

concerning the investigation and prosecution of the case against Newton

and his two codefendants and that motion, he argues, was improperly 

denied. Newton also argues that in his amended petition he pleaded that 

various experts were needed to investigate his claims in his 

postconviction petition: a forensic pathologist, a crime-scene 

reconstruction expert, a forensic investigator, a forensic 

neuropsychologist, a forensic psychiatrist, and a forensic psychologist. 

He asserts that the postconviction court erred in denying his request for 

funds to hire these experts. 

The State asserts that the postconviction court properly denied the 

motions for discovery and funds for experts for the reasons set out in 

Newton's request for funds. Newton asserted that the discovery and 
CR-2023-0953

14

experts were necessary to "develop his post-conviction claims. ..." (C. 

294.) 

A.

Newton first argues that the postconviction court erred in denying 

his motion for funds to secure the services of numerous experts so that 

he could investigate in preparation for the postconviction proceedings. 

Specifically, he argues that he was entitled to an ex parte hearing on his 

request for funds and that the court erred in not explaining its reason for 

denying that discovery motion. He contends that "he set forth the need"

for a forensic pathologist, a crime-scene reconstructionist, a forensic 

investigator, a forensic neuropsychologist, a special-education expert, a 

forensic psychiatrist, a neurologist, and a neuroimaging expert. 

The record shows that in 2022, postconviction-counsel filed a 

motion for leave to conduct an ex parte hearing to request funds to retain 

experts to investigate Newton's postconviction claims. (C. 293-96.) The 

State objected to Newton's motion and argued that the petition was due 

to be dismissed and that, therefore, funds should not be granted. (C. 306-

11.) The motion for funds was denied. (C. 387.) 
CR-2023-0953

15

First, Newton was not entitled to an ex parte hearing on his request 

for expert funds in this case. 

"Contrary to McGahee's assertions, the trial court was 

not obliged to allow him to proceed ex parte in his request for 

funds to pursue his postconviction claims. McGahee's reliance 

on Ake v. Oklahoma[,470 U.S. 68 (1985),], is misplaced 

because postconviction proceedings pursuant to Rule 32, Ala. 

R. Crim. P., are not criminal in nature. McGahee, himself, 

pursued this discretionary legal action against the State of 

Alabama, and the action is civil in nature. See Hamm v. 

State, [913 So. 2d 460] (Ala. Crim. App. 2002), and cases cited 

therein."

McGahee v. State, 885 So. 2d 191, 229 (Ala. Crim. App. 2003). See also 

James v. State, 61 So. 3d 357, 383 (Ala. Crim. App. 2010) ("[T]he circuit 

court did not commit reversible error in denying James's ... motion to 

proceed ex parte in his request for funds for expert assistance for his 

postconviction proceedings.").

Moreover, 

"This Court held that the fundamental fairness mandated by 

the Due Process Clause does not require the trial court to 

approve funds for experts at a postconviction proceeding. 

Hubbard v. State, 584 So. 2d 895, 900 (Ala. Crim. App. 1991). 

Moreover, this Court has specifically held that Ake [v. 

Oklahoma[, 470 U.S. 68 (1985),] is not applicable in 

postconviction proceedings. Ford v. State, 630 So. 2d 111, 112 

(Ala. Crim. App. 1991), aff'd, 630 So. 2d 113 (Ala. 1993). See 

also Williams v. State, 783 So. 2d 108 (Ala. Crim. App. 2000), 

aff'd, 662 So. 2d 929 (Ala. 1992) (table).
CR-2023-0953

16

"McGahee's reliance on Ex parte Moody, 684 So. 2d 114 

(Ala. 1996), is misplaced. In Moody, the Alabama Supreme 

Court held that 'an indigent criminal defendant is entitled to 

an ex parte hearing on whether expert assistance is 

necessary, based on the Fifth, Sixth, and Fourteenth 

Amendments to the United States Constitution.' 684 So. 2d 

at 120. As discussed above, for purposes of this proceeding, 

McGahee is not 'an indigent criminal defendant.' Instead, he 

is a convicted capital murderer who, in Rule 32 proceedings, 

is a civil petitioner with the burden of proving that he is 

entitled to relief on the grounds alleged in the petition he filed. 

Moody does not support McGahee's argument here. McGahee 

is not entitled to any relief on this claim of error. The trial 

court did not err when it denied an ex parte hearing on 

McGahee's request for funds."

McGahee, 885 So. 2d at 229. See White v. State, 343 So. 3d 1150, 1164 

(Ala. Crim. App. 2019) ("This Court has held that the provisions of Ake 

v. Oklahoma, [470 U.S. 68 (1985),] do not apply to postconviction 

petitions or collateral petitions. The circuit court committed no error in 

denying both of White's motions for funds for experts to assist in the 

postconviction proceedings."); Thompson v. State, 310 So. 3d 850, 885 

(Ala. Crim. App. 2018) ("Alabama has not extended the right to expert 

assistance required by Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 

L.Ed.2d 53 (1985), to postconviction proceedings."); Van Pelt v. State, 

202 So. 3d 707, 719-20 (Ala. Crim. App. 2015) (" '"Rule 32 petitioners are 

not entitled to funds to hire experts to assist in postconviction litigation, 
CR-2023-0953

17

ex parte or otherwise[;] the trial court did no err in denying the 

motion." '"); Bush v. State, 92 So. 3d 121, 167 (Ala. Crim. App. 2009) 

("'Because the law is clear that Rule 32 petitioners are not entitled to 

funds to hire experts to assist in postconviction litigation, ex parte or 

otherwise, the trial court did not err in denying the motion.'").

Other states have also found that a postconviction petitioner has no 

right to funds for experts. See also State v. Simpson, 61 N.E.3d 899, 904 

(Ohio Ct. App. 2016) ("We see no error in the trial court's denial of 

Simpson's motion for the appointment of an expert in connection with his 

petition for post-conviction relief. The short answer to his argument is 

that he had no right, statutory or constitutional, to the appointment of 

an expert to assist in his post-conviction relief petition. This court has 

held that 'indigent prisoners are not entitled to funding for experts when 

pursuing collateral attacks on their convictions.'"); People v. Richardson, 

189 Ill. 2d 401, 422, 245 Ill. Dec. 109, 122, 727 N.E.2d 362, 375 (2000) 

("Since a post-conviction petitioner does not have a constitutional right 

to appointed counsel ... there is no constitutional obligation to provide 

post-conviction counsel with investigative resources.").
CR-2023-0953

18

The postconviction court did not abuse its discretion in denying 

Newton's motion for funds for Newton to retain experts for the 

postconviction proceedings. Accordingly, Newton is due no relief on this 

claim.

B.

Newton next argues that the postconviction court erred in not 

granting his request for discovery from numerous State agencies. The 

discovery motion named the following offices: the Alabama Fire 

Marshal's Office, Tuskegee Fire Department, Tuskegee Police 

Department, Macon County Sheriff's Department, Macon County jail, 

Macon County Medical Examiner and Coroner, and the District 

Attorney's office in Macon County. 

The record shows that in 2022, Newton moved for discovery from 

the agencies named above. (C. 286-90.) The State objected and argued 

that each claim in the petition was due to be dismissed and, thus, that

discovery should be denied based on this Court's holding in State v. 

Martin, 4 So. 3d 1196, 1198 (Ala. Crim. App. 2008). (C. 299-303.)4 The 

4The Martin Court held that a motion for discovery in a 

postconviction proceeding is properly denied if the claims in the petition 

are procedurally barred. State v. Martin, 4 So. 3d at 1198.
CR-2023-0953

19

State then moved that the postconviction court withhold ruling on the 

discovery motion until it had considered the merits of the issues in the 

petition. (C. 315-19.) The motion for discovery was denied. (C. 387.)

The Alabama Supreme Court in Ex parte Land, 775 So. 2d 847 (Ala. 

2000), first recognized that there is no absolute right to discovery in a 

postconviction proceeding and that to be entitled to discovery the 

petitioner must establish "good cause." The Land Court stated: "We 

emphasize that this holding -- that postconviction discovery motions are 

to be judged by a good-cause standard -- does not automatically allow 

discovery under Rule 32, Ala. R. Crim. P., and that it does not expand the 

discovery procedures within Rule 32.4."5 Land, 775 So. 2d at 852. 

Consistent with the holding in Land, to determine whether a petitioner 

is entitled to discovery, we must examine the issues that are raised in the 

postconviction petition. 

"'[P]ostconviction discovery does not provide a petitioner with 

a right to "fish" through official files and ... it "is not a device 

5"Rule 32.4, Ala. R. Crim. P., states: "A proceeding under this rule 

displaces all post-trial remedies except post-trial motions under Rule 24 

and appeal. Any other post-conviction petition seeking relief from a 

conviction or sentence shall be treated as a proceeding under this rule. 

Proceedings under this rule shall be governed by the Rules of Criminal 

Procedure, except that the trial court in its sole discretion may allow the 

taking of dispositions for discovery or for use at trial."
CR-2023-0953

20

for investigating possible claims, but a means of vindicating 

actual claims."' Id. Thus, '[t]he threshold issue in a goodcause inquiry is whether the Rule 32 petitioner has presented 

claims that are facially meritorious.' Ex parte Turner, 2 So.

3d 806, 812 (Ala. 2008), overruled on other grounds by State 

v. Martin, 69 So. 3d 94 (Ala. 2011). A claim is facially 

meritorious 'only if the claim (1) is sufficiently pleaded in 

accordance with Rule 32.3 and Rule 32.6(b); (2) is not 

precluded by one of the provisions in Rule 32.2; and (3) 

contains factual allegations that, if true, would entitle the 

petitioner to relief.' Kuenzel v. State, 204 So. 3d 910, 914 (Ala. 

Crim. App. 2015). A Rule 32 petitioner is not entitled to 

discovery on claims that are not facially meritorious, i.e., on 

claims that are subject to summary dismissal. See, e.g., 

Morris v. State, 261 So. 3d 1181, 1202 (Ala. Crim. App. 2016) 

('Morris was not entitled to discovery, because the claims for 

which he sought discovery were either insufficiently pleaded, 

procedurally barred, or meritless, and they were dismissed.'); 

Van Pelt v. State, 202 So. 3d 707, 720 (Ala. Crim. App. 2015) 

('Because we conclude ... that Van Pelt's claims were 

insufficiently pleaded and that summary dismissal was 

appropriate, Van Pelt did not show 'good cause' to be entitled 

to discovery on those claims.'); and Yeomans v. State, 195 So.

3d 1018, 1051 (Ala. Crim. App. 2013) ('Our opinion today 

affirms the summary dismissal of all claims on which 

Yeomans sought discovery; therefore, Yeomans did not show 

‘good cause’ to be entitled to discovery on those claims.').

"Once a Rule 32 petitioner satisfies the threshold of 

raising a facially meritorious claim, the court must then 

determine whether there is good cause for the discovery. In 

determining whether there is good cause, a court should 

consider '"the scope of the requested discovery, the length of 

time between the conviction and the post-conviction 

proceeding, the burden of discovery on the State and on any 

witnesses, and the availability of the evidence through other 

sources."' Ex parte Mack, 894 So. 2d 764, 768 (Ala. 2003), 

overruled on other grounds by Ex parte Jenkins, 972 So. 2d 
CR-2023-0953

21

159 (Ala. 2005) (quoting People v. Johnson, 205 Ill. 2d 381, 

408, 275 Ill. Dec. 820, 793 N.E.2d 591, 607-08 (2002) 

(emphasis omitted))."

Woodward v. State, 276 So. 3d 713, 734-35 (Ala. Crim. App. 2018).

"'This authority [to order discovery in postconviction 

proceedings] must be exercised with caution, because of the 

potential for abuse of the discovery process and because of the 

limited scope of postconviction proceedings.' People v. 

Williams, 209 Ill. 2d 227, 236, 282 Ill. Dec. 824, 830, 807 

N.Ed.2d 448, 454 (2004). '[T]he range of issues in a postconviction proceeding is relatively narrow, and discovery 

requirements are correspondingly limited.' People ex rel. 

Daley v. Fitzgerald, 123 Ill. 2d 175, 182, 121 Ill. Dec. 937, 940, 

526 N.E.2d 131, 134 (1988)."

Jackson v. State, 910 So. 2d 797, 803 (Ala. Crim. App. 2005). 

The majority of the claims raised in Newton's petition were based 

on speculation, i.e., what might have been revealed had counsel acted 

differently. The discovery motion appeared to be a "fishing expedition." 

As the Alabama Supreme Court cautioned in Ex parte Land:

"By adopting this standard, we are only recognizing that a 

trial court, upon a petitioner's showing of good cause, may 

exercise its inherent authority to order discovery in a 

proceeding for postconviction relief. In addition, we caution 

that postconviction discovery does not provide a petitioner 

with a right to 'fish' through official files and that it 'is not a 

device for investigating possible claims, but a means of 

vindicating actual claims.' People v. Gonzalez, 51 Cal. 3d 

1179, 1260, 800 P.2d 1159, 1206, 275 Cal. Rptr. 729, 776 

(1990), cert. denied, 502 U.S. 835, 112 S.Ct. 117, 116 L.Ed.2d 

85 (1991). Instead, in order to obtain discovery, a petitioner 
CR-2023-0953

22

must allege facts that, if proved, would entitle him to relief. 

Cf. Porter v. Wainwright, 805 F.2d 930, 933 (11th Cir. 1986) 

('a hearing [on a habeas corpus petition] is not required unless 

the petitioner alleges facts which, if proved, would entitle him 

to federal habeas relief'), cert. denied, 482 U.S. 918, 919, 107 

S.Ct. 3195, 96 L.Ed.2d 682 (1987)."

Land, 775 So. 2d at 852. A postconviction court does not abuse its 

discretion in denying a discovery request that is in the nature of a

"fishing expedition." See State v. Stallworth, 941 So. 2d at 334.

For the reasons set out in this opinion, we hold that the 

postconviction court did not err in denying Newton's request for discovery

because the claims were either insufficiently pleaded or procedurally 

barred. See State v. Martin, supra. Accordingly, Newton is due no relief 

on this claim. 

III.

Newton next argues that the postconviction court erred in 

summarily dismissing his postconviction petition. As stated above, many

of the issues raised in the petition are claims that Newton's counsel

rendered ineffective assistance at Newton's capital-murder trial and 

sentencing hearing.

"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 
CR-2023-0953

23

have been the result of reasonable professional 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. A bare allegation that prejudice 

occurred without specific facts indicating how the petitioner 

was prejudiced is not sufficient."

Hyde v. State, 950 So. 2d at 356.

"[I]n considering whether [the petitioner's] claims of ineffective 

assistance of counsel were sufficiently pleaded, the circuit court properly 

considered each claim individually." Mashburn v. State, 148 So. 3d 1094, 

1117 (Ala. Crim. App. 2013).

A.

Newton first argues that the postconviction court erred in 

summarily dismissing many of his claims after finding that the claims 

were insufficiently pleaded. 

As stated above, the burden of pleading in a postconviction petition 

is a heavy burden. Hyde v. State, 950 So. 2d at 356. "The pleading 

requirements of Rule 32 apply equally to capital cases in which the death 

penalty has been imposed." Taylor v. State, 157 So. 3d 131, 140 (Ala. 

Crim. App. 2010). 
CR-2023-0953

24

We are aware that at the pleading stage of the postconviction

proceedings, a claim may not be dismissed for a petitioner's failure to 

meet his burden of proof. As this Court has stated:

"It is well settled that a postconviction 'claim may not be 

summarily dismissed because the petitioner failed to meet his 

burden of proof at the initial pleading stage, a stage at which 

the petitioner has only the burden to plead.' Johnson v. State, 

835 So. 2d 1077, 1080 (Ala. Crim. App. 2001). As this Court 

explained in Ford v. State, 831 So. 2d 641 (Ala. Crim. App.

2001):

"'[A]t the pleading stage of Rule 32 proceedings, a 

Rule 32 petitioner does not have the burden of 

proving his claims by a preponderance of the 

evidence. Rather, at the pleading stage, a 

petitioner must provide only "a clear and specific 

statement of the grounds upon which relief is 

sought." Rule 32.6(b), Ala. R. Crim. P. Once a 

petitioner has met his burden of pleading so as to 

avoid summary disposition pursuant to Rule 

32.7(d), Ala. R. Crim. P., he is then entitled to an 

opportunity to present evidence in order to satisfy 

his burden of proof.'

"831 So. 2d at 644."

Bryant v. State, 181 So. 3d at 1101. Also, "[a] circuit court may, in some 

circumstances, summarily dismiss a postconviction petition based on the 

merits of the claims raised therein." Bryant v. State, 181 So. 3d at 1102.
CR-2023-0953

25

1.

First, Newton argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

present a coherent theory of defense because, he says, the court merely 

offered a "string cite, with no analysis." (Newton's brief at p. 23.)6 He

argues that he adequately pleaded his claim that trial counsel failed to 

present any theory of the case that attacked the version of events offered 

by his codefendant, Chaundra Alexander.7

In his amended petition, Newton pleaded, in part:

"Counsel did not offer a theory for the jury to find that 

Newton either did not participate in the crime or had a 

different role in the offense than that claimed by [Chaundra] 

Alexander. Counsel presented no alternative theory of the 

crime or Newton's role. This constituted deficient 

performance. Newton was prejudiced by counsel's deficient 

performance because if counsel had presented a coherent 

theory of defense, there is a reasonable likelihood that the 

outcome of Newton's trial would have been different."

(C. 396-97.) 

6

"[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, 133 (Ala. Crim. App. 2009).

7

The trial record shows that Attorney Thomas Goggins was 

appointed to represent Newton in August 2001, and that cocounsel, 

Attorney Andrew Skier, was appointed in June 2002. 
CR-2023-0953

26

When dismissing this claim, the postconviction court found that 

Newton's pleadings were conclusory and unsupported by any facts.

"This claim in insufficiently pleaded. A Rule 32 petitioner 

must plead facts, not a conclusion, that would entitle him to 

relief. In an [ineffective-assistance-of-counsel] claim, the 

petitioner must plead facts that meet both prongs of the 

Strickland [v. Washington, 466 U.S. 668 (1984),] test for 

[ineffective assistance of counsel. This Court cannot 

determine whether Newton is entitled to relief based on the 

pleading, which amounts to a conclusory assertion."

(C. 571.) 

This claim was properly dismissed because Newton failed to plead 

the full facts to support the claim as required by Rule 32.6(b), Ala. R. 

Crim. P. Newton failed to plead what counsel should have done or what 

alternative theory of the case counsel should have presented at Newton's 

trial. In a similar case, this Court stated:

"Washington next argues that the circuit court erred in 

summarily dismissing his claim that counsel failed to state a 

'coherent theory of defense.' Specifically, he argues that 

witnesses who would have 'helped shape a defense theory'

should have been interviewed. Washington failed to plead 

what that 'coherent theory' might have been.

"....

"Washington failed to plead sufficient facts in regard to 

this claim. He failed to identify any alleged errors that 

resulted in his counsel's performance being deficient. Nor did 

he plead what counsel should have done to be effective. 
CR-2023-0953

27

Washington failed to satisfy the full-fact-pleading 

requirements of Rule 32.2(b), Ala. R. Crim. P."

Washington v. State, 95 So. 3d at 66-67. 

Also, the record on direct appeal shows that in the opening 

statement defense counsel attacked the credibility of Alexander, 

Newton's codefendant. Counsel also conducted a lengthy crossexamination of Alexander. (Trial Record, R. 702-37; 740-45.) Again, in 

closing, defense counsel attacked Alexander's credibility. Clearly, 

attacking Alexander's credibility was counsel's trial strategy.

" '"[T]he mere existence of a potential alternative defense 

theory is not enough to establish ineffective assistance based 

on counsel's failure to present that theory."' Hunt v. State, 

940 So. 2d 1041, 1067 (Ala. Crim. App. 2005), quoting RosarioDominguez v. United States, 353 F. Supp. 2d 500, 513 

(S.D.N.Y. 2005). 'Hindsight does not elevate unsuccessful 

trial tactics into ineffective assistance of counsel.' People v. 

Eisemann, 248 A.D.2d 484, 484, 670 N.Y.S.2d 39, 40-41 

(1998)."

Davis v. State, 44 So. 3d 1118, 1132 (Ala. Crim. App. 2009). See also 

Hunt v. State, 940 So. 2d 1041, 1067 (Ala. Crim. App. 2005).

The postconviction court did not err in finding that this claim was 

insufficiently pleaded pursuant to Rule 32.6(b), Ala. R. Crim. P., and due 

to be dismissed on that basis. Therefore, Newton is due no relief on this 

claim.
CR-2023-0953

28

2.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

adequately challenge and cross-examine state witnesses. Specifically, 

Newton pleaded that his trial counsel did not effectively cross-examine 

his codefendant Alexander because, he says, counsel failed to question 

her about a statement that Joe Henry had given to police after the 

murder. Henry told police that someone told him that Alexander's 

brother committed the murder. Newton also pleaded that his counsel 

was ineffective for failing to effectively cross-examine Milton Anderson. 

At Newton's trial, Anderson testified that Newton told him on the day 

after the murder that he had killed somebody.

When summarily dismissing this claim, the postconviction court 

stated:

"Newton bears the burden of pleading how a reasonable 

attorney would have modified, added, subtracted, or 

otherwise changed the challenge to the State's case, and 

further pleaded how this discrepancy undermined the 

confidence in the verdict. Challenges to the weight of the 

evidence or credibility of witnesses has no bearing on the 

effectiveness of counsel as those are jury questions. Further, 

the 'method and scope of cross examination is a paradigm of 

the type of tactical decisions that ordinarily cannot be 

challenged as evidence of [ineffective assistance of counsel].' 
CR-2023-0953

29

... Newton must proffer the testimony that would have been 

elicited and how that might have changed the outcome of the 

case, which he did not do. ... Newton's claim is conclusory 

and unsupported, and he is entitled to no relief on this basis."

(C. 572.) We agree with the postconviction court's findings. Newton 

failed to plead what counsel should have done during cross-examination 

to be effective -- he failed to plead what questions should have been asked 

of the witnesses. As this Court recently stated:

"In Stanley v. State, 335 So. 3d 1, 21 (Ala. Crim. App. 

2020), this Court addressed a similar claim alleging that trial 

counsel was ineffective for failing to adequately cross-examine 

a State's witness. The circuit court in Stanley, just as the 

circuit court did here, found that Stanley's claim was 

insufficiently pleaded in part because Stanley failed to plead 

facts showing what the answers to the unasked questions 

would have been had his counsel asked those questions on 

cross-examination. This Court agreed with the circuit court's 

judgment and affirmed its conclusion that Stanley's claim was 

insufficiently pleaded.

"Here, not only did Wilson fail to allege what answers 

the State's expert witnesses would have given had counsel 

cross-examined them differently, Wilson also failed to allege 

what questions his counsel should have asked to those expert 

witnesses. And to the extent that Wilson alleged that his 

counsel were ineffective for failing to retain expert assistance 

to aid in questioning the State's expert witnesses, Wilson did 

not identify by name any expert his counsel should have 

hired. Thus, the circuit court properly found that Wilson's 

claim was insufficiently pleaded."
CR-2023-0953

30

Wilson v. State, [Ms. CR-21-0109, June 28, 2024] ___ So. 3d ___, ____ 

(Ala. Crim. App. 2024).

Moreover, the trial record shows that in September 2002, trial 

counsel moved for a continuance and asserted in that motion that a 

continuance was necessary so that he could investigate Henry's 

statement, a copy of which he had recently received from the State. (Trial 

Record, C. 77-78.)8 Henry's statement read, in part: "Curtis Howard's 

brother told me that he was there when they robbed the white guy on 29 

S. He said the girl burned up about twenty thousand dollars in a brown 

paper bag and said that Matthew Alexander is the one who shot the 

man." (Trial Record, C. 79.) Newton was not tried until April 2006. Trial

counsel had almost three years to investigate the statement. Also, during 

Alexander's cross-examination, defense counsel admitted certified copies 

of Alexander's three prior felony convictions. (Trial Record, R. 726.) 

Counsel also questioned Alexander concerning her plea agreement with 

the State and about the statements that she had given to police. Defense 

8A copy of Henry's statement was attached to Newton's motion for 

a continuance. (Trial Record, C. 77-83.)
CR-2023-0953

31

counsel's cross-examination of Alexander was extensive. (Trial Record,

R. 725-60; 763-67.) 

The trial record further shows that Milton Anderson testified that 

Newton and Alexander came by his house on the evening of the murder 

and asked him to help them unload the truck they were driving. 

Anderson said that there were four .12-gauge shotguns and two pistols

in that truck. (Trial Record, R. 774.) Anderson testified that Newton 

came to his house the next morning:

"[Prosecutor]: Tell the members of the jury what happened 

when [Newton] came back?

"[Anderson]: Well, he came back. We had a little discussion 

about what had happened, you know, what had took place.

"[Prosecutor]: And what did he tell you had took place?

"[Anderson]: Told me he had killed a dude.

"[Prosecutor]: Did he tell you who the dude was?

"[Anderson]: No.

"[Prosecutor]: Did he say why he killed him?

"[Anderson]: Say, [Alexander] had told him the dude had a 

lot of guns and money or something.

"[Prosecutor]: Okay. And he said he killed him for the guns 

and money?
CR-2023-0953

32

"[Anderson]: Yes, sir."

(Trial Record, R. 774.) Anderson was cross-examined about his two prior 

felony convictions and the statements that he had made at the 

preliminary hearing. (Trial Record, R. 775-781.)

It is clear from the trial record that counsel was aware of Henry's 

statement to police. Also, Henry had no personal knowledge concerning 

the truth of his statement because it was based on what another person 

told him and was hearsay. See Rule 802, Ala. R. Evid. Nothing in 

Newton's pleadings suggests that Henry's statement would have been 

admissible. See Rule 803, Ala. R. Evid. Nor did Newton plead who could 

have testified to the content of Henry's hearsay statement to police. 

Furthermore, 

"'[d]ecisions regarding whether and how to conduct crossexaminations and what evidence to introduce are matters of 

trial strategy and tactics.' Rose v. State, 258 Ga. App. 232, 

236, 573 S.E.2d 465, 469 (2002). '"'[D]ecisions whether to 

engage in cross-examination, and if so to what extent and in 

what manner, are ... strategic in nature.'"' Hunt v. State, 940 

So. 2d 1041, 1065 (Ala. Crim. App. 2005), quoting RosarioDominguez v. United States, 353 F. Supp. 2d 500, 515 

(S.D.N.Y. 2005), quoting in turn, United States v. Nersesian, 

824 F.2d 1294, 1321 (2d Cir. 1987). 'The decision whether to 

cross-examine a witness is [a] matter of trial strategy.' People 

v. Leeper, 317 Ill. App. 3d 475, 483, 740 N.E.2d 32, 39, 251 Ill. 

Dec. 202, 209 (2000)."
CR-2023-0953

33

A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007). " '"[T]he 

scope of cross-examination is grounded in trial tactics and strategy, and 

will rarely constitute ineffective assistance of counsel."' Bonner v. State, 

308 Ga. App. 827, 828, 709 S.E.2d 358, 360 (2011) (quoting Cooper v. 

State, 281 Ga. 760, 762, 642 S.E.2d 817, 820 (2007))." Stanley v. State, 

335 So. 3d 1, 37 (Ala. Crim. App. 2020).

The postconviction court correctly found that this claim was due to 

be dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P. For these reasons, 

Newton is due no relief on this claim.

3.

Newton next argues that his trial counsel was ineffective for failing 

to investigate, develop, and present evidence that a third party had been

involved in the murder. In regard to this claim, Newton pleaded, in part:

"The statement of Joe Henry, given to police three months 

after the crime was committed, indicated that Alexander's 

brother, Matthew Alexander, had committed the murder 

while robbing the victim with Alexander. According to Henry, 

'Curtis Howard[s] brother told [Henry] that he was there 

when they robbed the white guy on 29 S. Henry stated that 

Howard's brother also said that Alexander had instructed her 

brother Matthew to shoot the victim because the victim knew 

who she was. Henry stated that Howard's brother did not 

implicate Newton in the crime and that Henry saw Newton in 

jail, where Newton told him he was being held for something 

he did not do."
CR-2023-0953

34

(C. 400.) Newton further pleaded that counsel should have investigated

Michael Benson, who reportedly told members of the community that he 

had committed the murder. (C. 400.) Last, Newton pleaded that trial 

counsel failed to contact a "single alibi or character witness who had 

spent time with Newton in the days around when the crime occurred. 

These potential witnesses include Pearl Riley, Brittney Sparks, Angie 

Lewis, and Tonya Bell." (C. 400-401.) 

In dismissing this claim, the postconviction court made the 

following finding: "Newton fails to plead what trial counsel should have 

done and must proffer the testimony that would have been elicited and 

how that might have changed the outcome of the case, which he did not 

do. ... Newton's claim is conclusory and unsupported, and he is entitled 

to no relief on this basis." (C. 572.) 

First, as noted above, Henry's statement was not that he had 

personal knowledge that someone else had committed the murder but

rather was that another person had told him that someone else had 

committed the murder. Henry's statement was classic hearsay. "We 

have traditionally held that an accused may not prove the guilt of another 

by presenting hearsay evidence." Johnson v. State, 820 So. 2d 842, 866
CR-2023-0953

35

(Ala. Crim. App. 2000). In Ex parte Griffin, 790 So. 2d 351 (Ala. 2000), 

the Alabama Supreme Court recognized an exception to this traditional 

rule: 

"[T]his Court has set out a test intended to ensure that any 

evidence offered for this purpose is admissible only when it is 

probative and not merely speculative. Three elements must 

exist before this evidence can be ruled admissible: (1) the 

evidence 'must relate to the "res gestae" of the crime'; (2) the 

evidence must exclude the accused as a perpetrator of the 

offense; and (3) the evidence 'would have to be admissible if 

the third party was on trial.' See Ex parte Walker, 623 So. 2d

[281] at 284 [(Ala. 1992)], and Thomas [v. State], 539 So. 2d 

[375] at 394-96 [(Ala. Crim. App. 1988)]."

Griffin, 790 So. 2d at 354. Newton pleaded no facts that would support 

the admission of the hearsay statement under the Griffin factors. 

Moreover,

"[f]or [the appellant] to meet his burden of pleading his claims 

that his counsel was ineffective for failing to present the 

testimony of a certain witness, he must plead, among other 

things, facts establishing the following: (1) the identity of the 

witness; (2) the content of the witness's expected testimony; 

(3) that the testimony was favorable to the defendant; (4) that 

the witness was available to testify at [the petitioner's] trial 

and would have testified; and (5) that a reasonable 

investigation would have led counsel to the witness."

Stallworth v. State, 171 So. 3d at 68. Newton failed to plead any facts 

that would satisfy the factors set out in Stallworth. Though he identified 

several potential witnesses by name, he did not plead their expected 
CR-2023-0953

36

testimony or how that testimony could have benefited him. We agree 

with the postconviction court that Newton failed to plead the full facts in 

support of this claim. Thus, summary dismissal was proper. 

Second, in regard to the pleadings concerning Michael Beason, 

Newton's entire pleading states: "Counsel also failed to adequately 

investigate Michael Beason, who reportedly told members of the 

community that he had committed the crime. Counsel made only a 

perfunctory effort to locate Beason and abandoned the search after his 

initial failure." (C. 400.) Clearly, Newton failed to plead the full facts in 

support of this claim. He failed to plead any facts concerning Beason's 

statement, failed to plead how this testimony would have been presented 

at trial, and failed to plead how he was prejudiced by counsel's failure to 

present this testimony. "[The appellant] failed to plead sufficient facts in 

support of this claim to satisfy the requirements of Rule 32.3 and Rule 

32.6(b)." Mashburn v. State, 148 So. 3d at 1143.

Third, Newton pleaded that trial counsel failed to contact four 

potential witnesses. However, his amended petition did no more than 

merely identify those potential witnesses by name. The petition did not 

identify who the witnesses were in relation to the case, did not indicate 
CR-2023-0953

37

whether those witnesses were available to testify at trial, and did not 

plead what those witnesses would have testified to at Newton's trial. Nor 

did Newton plead how he was prejudiced by counsel's failure to call the 

named witnesses. As this Court has repeatedly stated: "'A claim of 

failure to call witnesses is deficient if it does not show what the witnesses 

would have testified to and how that testimony might have changed the 

outcome.'" Woodward v. State, 276 So. 3d at 779, quoting Thomas v. 

State, 766 So. 2d 860, 893 (Ala. Crim. App. 1998). 

The postconviction court properly found that this claim was due to 

be dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P. Therefore, 

Newton is due no relief on this claim. 

4.

Newton next argues that his trial counsel's performance was 

ineffective because trial counsel failed to request jury instructions on the 

lesser-included offense of felony murder. 

In his amended petition, Newton pleaded:

"If the jury doubted Alexander's credibility as to the 

events that led to the victim's death, there was a plausible 

theory that Newton participated in the robbery, but that the 

victim was killed by Alexander or another participant in the 

offense and that Newton did not intend for the victim to be 

killed. Due to the lack of evidence, other than Alexander's 
CR-2023-0953

38

testimony, that established Newton's intent -- including the 

complete lack of physical evidence -- in addition to the 

unexplained evidence that suggested the victim had been 

stabbed, Alexander's version of events [was], at best, 

incomplete."

(C. 403-404.)

When dismissing this claim, the postconviction court stated, in 

part:

"Newton fails to plead facts that show he was entitled to 

the jury instructions or that reasonable counsel would have 

requested the instruction, but setting that aside, a review of 

the trial transcript reveals that this claim is without merit. 

There was no factual basis for a lesser-included jury charge 

on felony murder. ... The evidence presented established 

Newton's intentional actions inflicting injury and delivering 

the coup de grace by gunshot to the head. There was no basis 

for a lesser-included felony murder charge because the facts 

did not support such a charge, thus trial counsel could not be 

ineffective for not requesting a meritless instruction." 

(C. 573-74.) 

When considering whether instructions on felony murder are 

warranted, this Court has stated:

"Lesser included offense instructions should be given 

when there is a 'reasonable theory from the evidence'

supporting such an instruction. Jenkins [v. State, 627 So. 2d 

1034 (Ala. Cr. App. 1992)]. Here, there was no reasonable 

theory to support a charge on felony-murder. '"The purpose 

of the felony-murder doctrine is to hold felons accountable for 

unintended deaths caused by their dangerous conduct."' 

White v. State, 587 So. 2d 1218, 1231 (Ala. Cr. App. 1990), 
CR-2023-0953

39

aff'd, 587 So. 2d 1236 (Ala. 1991), cert. denied, 502 U.S. 1076, 

112 S.Ct. 979, 117 L.Ed.2d 142 (1992). Here, the evidence did 

not show that the shootings were unintended. The court did 

not err in not instructing the jury on the lesser included 

offense of felony -- murder."

Dobyne v. State, 672 So. 2d 1319, 1345 (Ala. Crim. App. 1994).

"There was no reasonable basis to charge the jury on the 

lesser offense of felony murder. The crime of felony murder is 

reserved for those situations where an unintended death 

occurs as a result of a defendant's dangerous conduct. Here, 

the manner of the killing -- shooting Phillips in the back of the 

head at point-blank range -- showed that the murder was 

intentional. The circuit court did not err in failing to instruct 

the jury on felony murder. See Dunaway v. State, 746 So. 2d 

1021 (Ala. Crim. App. 1998), aff'd, 746 So. 2d 1042 (Ala.

1999)."

Calhoun v. State, 932 So. 2d 923, 969-70 (Ala. Crim. App. 2005).

Newton pleaded no facts that would establish that the murder was 

unintended. He merely pleaded that the jury could have believed that 

the version of how Whatley was killed was inaccurate, that Whatley had 

been stabbed, and that Alexander had a knife with her at the time of the 

murder. The trial record shows that the coroner, Dr. James Downs,

testified that Whatley's body was burned and that his skull was 

fractured. Whatley had a gunshot wound to the back of his head, Dr. 

Downs said, and it was his opinion that Whatley died of that wound. 

(Trial Record, R. 891.) Dr. Downs also testified that Whatley had a 
CR-2023-0953

40

wound on his neck. Defense counsel asked if that wound could have been 

caused by being stabbed with a knife. Dr. Downs's answered: "They were 

very superficial, and no blood of note was associated with them." (Trial 

Record, R. 898.) No facts in the record suggested that the murder was an 

unintended act. Based on the record, there was no rational basis for a 

jury instruction on felony murder. "Under Strickland [v. Washington,

466 U.S. 668 (1984),] where a jury instruction on a lesser included offense 

is not supported by the evidence, counsel is not ineffective for failing to 

request the instruction." Arce v. State, 530 P. 3d 472, 482 (Okla. Crim. 

App. 2023).

Also, the record shows that a lengthy charge conference was held,

and that defense counsel requested 20 different instructions. (Trial 

Record, R. 904-36; C. 440-465.) Defense counsel also requested that the 

circuit court give an instruction on the lesser included offense of murder. 

(Trial Record, R. 948.) The circuit court indicated that it would give 

instructions on capital murder, murder, arson, and theft of property. 

(Trial Record, R. 949-50.) 
CR-2023-0953

41

For the above reasons, we agree with the postconviction court that 

this claim was insufficiently pleaded pursuant to Rule 32.6(b), Ala. R. 

Crim. P. Thus, Newton is due no relief on this claim. 

5.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

object to testimony concerning Newton's prior bad acts. Specifically, he 

argues that counsel was ineffective for failing to object when Alexander 

testified that Newton mentioned during the robbery/murder that he had 

just gotten out of prison and that he was not going back to prison. 

When dismissing this claim, the postconviction court stated:

"Newton fails to plead why no reasonable attorney would have 

failed to object to this testimony, this claim is clearly without 

merit. In this case, [Newton's] statement that they are 'not 

going back to prison' is relevant, Rule 402, Ala. R. Evid., is not 

objectionable to on the basis of hearsay, Rule 801(d)(2)(a), nor 

does it fall under the prohibition against character evidence. 

Rule 404, Ala. R. Crim. It is clearly admissible for purposes 

of showing 'proof of motive, opportunity, intent, plan, 

knowledge ... or absence of mistake or accident.' Rule 

404(b)(2). The State is always permitted to prove motive. ... 

Counsel cannot be held ineffective for failing to object to 

admissible evidence."

(C. 574.)
CR-2023-0953

42

The trial record shows that before trial, defense counsel moved that 

the circuit court enter an order directing the District Attorney's Office to 

identify the "'other acts' evidence it intended to use at trial." (Trial 

Record, C. 15.) This motion was granted. (Trial Record, C. 71.) During 

Alexanders's testimony she said that Newton pointed a gun at her and 

Whatley. She testified:

"[Whatley] told [Newton] he didn't have to hurt him. He 

would give him anything. I told him, I said, you ain't got to 

hurt him. I said, he'll give you anything you want. [Newton]

said, naw, I ain't fixing to let this nigger live. [Newton] said, 

I ain't fixing to let him live. [Newton] said, I just got out of 

prison. I ain't fixing to go back."

(Trial Record, R. 711.)

Alexander's statement as to what Newton said during the 

robbery/murder was admissible. It was relevant to establish Newton's

motive for killing Whatley because Whatley could identify him, and he 

was not going back to prison. Evidence that tends to show motive is 

admissible. See Revis v. State, 101 So. 3d 247, 280 (Ala. Crim. App. 

2011). "[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).

For these reasons, Newton's claim was correctly dismissed. Thus, 

Newton is due no relief on this claim. 
CR-2023-0953

43

6.

Newton next argues that the postconviction court erred in 

dismissing his claim that the State violated Brady v. Maryland, 373 U.S. 

83 (1963), by failing to timely disclose that Macon County Deputy Sheriff 

Darryl Rock had taken an inculpatory statement from Joe Henry. As 

stated above, Henry told Deputy Rock that another person told him that 

the murder had been committed by Alexander and her brother.9 Newton 

further asserts that the State failed to timely disclose that Deputy Rock

had been indicted for theft by deception by a Macon County grand jury. 

Newton's argument in his brief on appeal consists of four paragraphs and 

only states that the State failed to explain the late disclosure. 

When dismissing this claim, the postconviction court stated:

"These claims are procedurally barred, insufficiently 

pleaded, and meritless. In order to prevail, Newton must 

plead facts amounting to state suppression of exculpatory 

information that would have altered the outcome of the trial. 

... Instead, Newton pleads both that he was provided notice of 

the statement and received a three-year continuance and that 

he was notified of the deputy's indictment weeks prior to trial 

and that the deputy did not testify at trial. Further, a review 

of the AlaCourt file and specifically the Motion to Continue 

filed on September 9, 2022, reveals the complained-ofstatement is double and triple hearsay. This claim is 

procedurally barred because it could have been raised at trial 

9Deputy Rock did not testify at Newton's trial. 
CR-2023-0953

44

but was not. This claim is insufficiently pleaded because 

Newton failed to plead either suppression or prejudice. This 

claim is without merit because Newton pleaded facts contrary 

to suppression and prejudice."

(C. 575.) Newton failed to plead how he was prejudiced by any untimely 

disclosure of Henry's statement and Deputy Rock's indictment.

First, this Court has held that a Brady claim may be procedurally 

barred in a postconviction proceeding. 

"[T]he circuit court correctly ruled that Boyd's Brady [v. 

Maryland, 373 U.S. 83 (1963),] claim is procedurally barred. 

Boyd did not assert in his petition that the claim was based 

on newly discovered evidence or that any alleged suppression 

by the State continued until such time as the claim could not 

have been raised at Boyd's trial. Therefore, the circuit court 

correctly found the claim to be procedurally barred under Rule 

32.2(a)(3), Ala. R. Crim. P., because it could have been raised 

at trial, but was not. Moreover, the claim is procedurally 

barred under Rule 32.2(a)(5), Ala. R. Crim. P., because it could 

have been raised on direct appeal, but was not. See Williams 

v. State, 782 So. 2d 811, 818 (Ala. Crim. App. 2000) (finding 

an alleged Brady violation to be subject to procedural bars of 

Rule 32.2(a), Ala. R. Crim. P.). See also, e.g., Boyd v. State, 

746 So. 2d 364, 408 (Ala. Crim. App. 1999)."

Boyd v. State, 913 So. 2d at 1142. 

This claim is procedurally barred because it could have been raised 

at trial. 

"[A]lthough McWhorter does not have to prove that his Brady

[v. Maryland, 373 U.S. 83 (1963),] claim is based on 'newly 

discovered material facts' as defined under Rule 32.1(e)(1)-(5), 
CR-2023-0953

45

he must still plead facts indicating that his claim could not 

have been raised at trial or on direct appeal to avoid being 

procedurally barred under Rule 32.2(a)(3) and 32.2(a)(5). 

This requires McWhorter to plead that the State's alleged 

concealment of Rice's statement 'was not known, and could 

not reasonably have been discovered, at trial or in time to 

raise the issue in a motion for new trial or on appeal.' [Ex 

parte] Pierce, 851 So. 2d [606] at 616 [(Ala. 2000)]. See also 

Hunt [v. State, 940 So. 2d 1041 (Ala. Crim. App. 2005)], Boyd 

v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003), and Windsor 

v. State, 89 So. 3d 805 (Ala. Crim. App. 2009)."

McWhorter v. State, 142 So. 3d 1195, 1261 (Ala. Crim. App. 2011). As 

Newton freely admits in his petition, Henry's statement was known well 

before trial. Pursuant to McWhorter this claim is procedurally barred in 

this proceeding because it could have been raised at trial.

Moreover, it is rare that a claim of untimely discovery disclosure 

results in reversible error. "Tardy disclosure of Brady material is 

generally not reversible error unless the defendant can show that he was 

denied a fair trial." Coral v. State, 628 So. 2d 954, 979 (Ala. Crim. App. 

1992). In this case, the record shows that defense counsel had been given 

Henry's statement almost three years before Newton was tried. 

Moreover, Newton pleaded that "weeks before the eventual trial" he was 

notified that Deputy Rock had been indicted by a Macon County grand 

jury. (C. 406.) Certainly, based on these facts, Newton did not, and could 
CR-2023-0953

46

not, plead how he was prejudiced by the untimely disclosure. Thus, this 

claim was also insufficiently pleaded as he failed to plead the full facts in 

support of the claim. See Rule 32.6(b), Ala. R. Crim. P. For these reasons, 

Newton is due no relief on this claim.

7.

Newton next argues that the postconviction court erred in 

dismissing his claim that the State violated Giglio v. United States, 405 

U.S. 150 (1972), and Napue v. Illinois, 360 U.S. 264 (1959), by failing to 

disclose the entire terms of his codefendant Alexander's plea agreement 

with the State. 

In his amended postconviction petition, Newton pleaded:

"On August 20, 2022, the State entered into a plea 

agreement with Newton's codefendant, Chaundra Johnson 

(Alexander). At Newton's trial the State called Alexander to 

testify against him. On cross-examination, Alexander 

acknowledged she accepted a plea agreement in 2002 for a life 

with the possibility of parole sentence and prospective trial 

testimony against Newton. Alexander thus reduced her 

capital murder charge to parole eligibility beginning in 2025.

"The State has neither disclosed the entire terms of 

Alexander's plea deal with respect to her testimony against 

Newton nor the extent of its instruction to Alexander 

regarding her trial testimony. Further, the State failed to 

correct her false statements during her trial testimony."

(C. 408.)
CR-2023-0953

47

When dismissing this claim, the postconviction court stated:

"This claim is insufficiently pleaded and refuted by the record. 

Newton's trial counsel was present at the plea, and Newton 

pleaded that trial counsel cross-examined the codefendant on 

the terms of the plea. Newton failed to plead what was not 

revealed about the deal and failed to plead any specific facts 

regarding false testimony given at Newton's trial, or how any 

of this individually or collectively would have altered the 

outcome of the trial."

(C. 575.)

Newton failed to plead the "entire terms" of Alexander's plea 

agreement with the State or that the terms of her plea agreement were 

any different from those that she testified to at Newton's trial. Indeed, 

Newton pleads nothing to suggest that the full terms of that plea were 

not disclosed to defense counsel. Furthermore, defense counsel was 

present at Alexander's plea hearing and was personally aware of the 

terms of the plea agreement. (C. 575.) Last, Newton failed to plead how 

he was prejudiced. Thus, Newton failed to plead full facts in support of 

this claim and summary dismissal was proper. Accordingly, Newton is 

due no relief on this claim.

8.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 
CR-2023-0953

48

secure the services of an independent forensic pathologist. Specifically, 

he asserts that this claim was sufficiently pleaded, and it was error for 

the postconviction court to dismiss this claim.

In his amended postconviction petition, Newton pleaded that his 

trial counsel failed to secure the testimony of a forensic pathologist to 

counter the testimony of Dr. James Downs concerning the cause of 

Whatley's death. Newton further pleaded that a forensic pathologist, Dr. 

Terri Haddix, was available to evaluate the evidence and testify at 

Newton's trial. 

In dismissing this claim, the postconviction court stated:

"This claim is insufficiently plead. While Newton does 

state that Dr. Terri Haddix was 'available to consult and 

opine' on the case, he fails to plead what that consultation or 

opinion would have been, or for that matter what it currently 

would be, and likewise, fails to name the test(s) necessary to 

counter the state's expert. Merely naming a witness located 

some 15 years post-trial is simply insufficient in a 

postconviction proceeding. Newton must proffer the 

testimony that would have been elicited and how that might 

have changed the outcome of the case, which he did not do."

(C. 576.) The postconviction court's findings are consistent with well

established Alabama law.

For a claim concerning the failure to call an expert to satisfy the 

full-fact pleading requirements of Rule 32.6, Ala. R. Crim. P., the 
CR-2023-0953

49

petitioner must do more than merely plead the name of an expert who 

could have testified. He must also plead the content of the expert's 

expected testimony. As this Court has stated:

"Daniel failed to identify, by name, any forensic or DNA 

expert who could have testified at Daniel's trial or the content 

of the expert's expected testimony. Accordingly, Daniel failed 

to comply with the full fact pleading requirements of Rule 

32.6, Ala. R. Crim. P. See McNabb v. State, 991 So. 2d 313 

(Ala. Crim. App. 2007) (claim that counsel was ineffective for 

failing to retain an expert not sufficiently pleaded because 

expert was not identified); Woods v. State, 957 So. 2d 492 (Ala.

Crim. App. 2004), rev'd on other grounds, 957 So. 2d 533 (Ala.

2006) (claim of ineffective assistance of counsel not 

sufficiently pleaded because Woods failed to identify an expert 

by name)."

Daniel v. State, 86 So. 3d 405, 425-26 (Ala. Crim. App. 2011). Newton 

failed to plead the content of the expert's expected testimony.

Moreover,

"The decision of how to deal with the presentation of an expert 

witness by the opposing side, including whether to present 

counter expert testimony, to rely upon cross-examination, to 

forgo cross-examination and/or to forgo development of 

certain expert opinion, is a matter of trial strategy which, if 

reasonable, cannot be the basis for a successful ineffective 

assistance of counsel claim."

Thomas v. State, 284 Ga. 647, 650, 670 S.E.2d 421, 425 (2008).

In this case, Dr. Downs testified that he had personally conducted 

more than 4,000 autopsies and had participated in more than 15,000 
CR-2023-0953

50

autopsies. Dr. Downs testified that Whatley's body was burned and that 

he had a bullet wound to his head. It was Dr. Downs's opinion that 

Whatley died from that bullet. Given Dr. Down's extensive experience,

it would have been reasonable for counsel to choose not to retain a 

separate expert but instead to rely on cross-examination of the State's 

expert.

This claim was properly summarily dismissed because Newton 

failed to plead the full facts in support of the claim. See Rule 32.6(b), Ala. 

R. Crim. P. Therefore, Newton is due no relief on this claim.

9.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

secure the services of an independent investigator to conduct crime-scene 

reconstruction.

In his amended petition, Newton pleaded that "competent defense 

required the involvement of a fact investigator to assess the physical and 

other evidence and reconstruct the murder crime scene." (C. 411.) 

Newton also pleaded that a forensic investigator, R. Robert Tressel, was 

available and could have been engaged for Newton's trial. 
CR-2023-0953

51

When dismissing this claim, the postconviction court stated:

"This claim is insufficiently pleaded. Newton pleads the 

conclusory statement that 'no meaningful steps were taken to 

prepare to counter' the State's case and that R. Robert Tressel 

'was and remains available' to evaluate the evidence.' 

Newton fails to plead what 'meaningful steps' are or how that 

would change the outcome of the case and fails to proffer the 

testimony that would have been elicited and how that might 

have changed the outcome of the case."

(C. 576.) As the court correctly noted, Newton failed to plead what the 

expert could have testified to and how he was prejudiced by counsel's 

failure to secure the services of an accident-scene reconstructionist. 

Thus, Newton failed to plead the full facts in support of this claim.

"A petitioner's postconviction claims that his or her 

defense counsel was ineffective in failing to investigate 

possible defenses are too speculative to warrant relief if the 

petitioner fails to allege what exculpatory evidence the 

investigation would have procured and how it would have 

affected the outcome of the case. The district court correctly 

concluded that Newman's conclusory allegations about the 

failure to hire a crime scene investigator did not warrant an 

evidentiary hearing."

State v. Newman, 300 Neb. 770, 792, 916 N.W.2d 393, 412 (2018).

Moreover, "There is no per se rule that requires trial attorneys to 

seek out an expert." Woodward v. State, 276 So. 3d at 763 (citations 

omitted). "'[T]he State could always call its own witness to offer a 

contrasting opinion.' Marshall v. State, 20 So. 3d 830, 841 (Ala. Crim. 
CR-2023-0953

52

App. 2008) (quoting, People v. Hamilton, 361 Ill. App. 3d 836, 847, 297 

Ill. Dec. 673, 683, 838 N.E.2d 160, 170 (2005))." Stanley v. State, 335 So. 

3d at 32).

We agree with the postconviction court that this claim was due to 

be summarily dismissed pursuant to Rule 32.6(b), Ala. R. Crim. P., 

because Newton failed to plead the full facts in support of the claim. 

Thus, Newton is due no relief on this claim. 

10.

Newton next argues that the postconviction court erred in 

dismissing his claim that he was not eligible to receive a sentence of 

death because he is intellectually disabled. Specifically, he argued that 

his death sentence violates the United States Supreme Court's holding 

in Atkins v. Virginia, 536 U.S. 304 (2002). 

The United States Supreme Court held in Atkins v. Virginia that it 

was a violation of the Eighth Amendment and that it was cruel and 

unusual punishment to execute a mentally retarded individual. The

Supreme Court left it to the individual states to define mental 

retardation. The Alabama Supreme Court in Ex parte Perkins, 851 So.2d 

453, 456 (Ala. 2002), held that to be considered mentally retarded for a 
CR-2023-0953

53

death sentence to be barred under Atkins, the defendant must show: (1) 

significant subaverage intellectual functioning or an IQ of 70 or below; 

(2) significant or substantial deficits in adaptive behavior; and (3) that 

these problems manifested themselves during the developmental period

or before the age of 18. In Hall v. Florida, 572 U.S. 701 (2014), the 

Supreme Court did not use the term "mentally retarded" but used the 

term "intellectual disability" in discussing its Atkins holding. 572 U.S. 

at 704.

In his amended petition, Newton pleaded that at age 13 he was held 

back in school, that his grades were in the lower half of his class, that 

Newton received treatment at age 13 for his difficulties concerning 

conceptual, social, and practical adaptive functioning, that at age 16 he 

was bludgeoned in the head, that a forensic neuropsychologist, Dr. Dale 

Watson, was available to perform testing on Newton, and that another 

expert in special education and intellectual disability, James Patton, 

could have evaluated Newton. Newton also pleaded: "Available school, 

medical, and clinical records do not reflect intelligence measurement of 

Newton in the form of a neuropsychologist test battery." (C. 414; 

emphasis added.) 
CR-2023-0953

54

In dismissing this claim, the postconviction court stated:

"This claim is insufficiently pleaded. Newton fails to 

plead whether he has an IQ at or below 70 accompanied by 

significant defects in adaptive behavior, both of which 

manifested prior to the age of 18, nor does Newton plead any 

of these as they relate to him currently. While he again names 

doctors, he fails to plead the purported testimony of either or 

whether they were available during the dates of the 2006 

trial. Merely naming a witness located some 15 years posttrial is simply insufficient in a postconviction proceedings."

(C. 576-77.) 

We agree with the postconviction court that Newton failed to plead 

the full facts that would support application of the Atkins and Perkins

factors. Indeed, the major portion of this pleading is based on speculation

concerning what tests might reveal concerning Newton's mental 

capacity. Most importantly, Newton failed to plead Newton's IQ. 

The United States Court of Appeals for the Eleventh Circuit has

considered the validity of the denial of a habeas corpus petition in which

an Atkins claim had been summarily dismissed in the Alabama Rule 32 

proceedings. That Court stated:

"In his Rule 32 petition, Powell alleged the following fact 

as the basis for his claim of mental retardation: 'Mr. Powell 

was diagnosed as mildly mentally retarded in the fifth grade 

by the Lake County, Illinois school system.' However, Powell 

did not allege in his Rule 32 petition that his IQ was or is 70 

or below, which is necessary to support a finding of mental 
CR-2023-0953

55

retardation in Alabama. See [Ex parte] Perkins, 851 So. 2d 

[453] at 456 [(Ala. 2002)]. Because a finding of mental 

retardation to sustain an Atkins [v. Virginia, 536 U.S. 304 

(2002),] claim requires both significantly subaverage 

intellectual functioning and significant deficits in adaptive 

functioning, Powell had failed to plead facts on which an 

Atkins claim can be based. Accordingly, we cannot say that 

the state court's determination of this issue was contrary to 

or an unreasonable application of Atkins."

Powell v. Allen, 602 F.3d 1263, 1272 (11th Cir. 2010). The same is true 

in this case. See Smith v. State, 71 So. 3d 12, 18 (Ala. Crim. App. 2008)

("Smith failed to meet his burden of pleading in regard to this claim" [that 

Atkins] barred his sentence of death because Smith failed to plead his 

IQ.). Newton failed to plead the factors recognized in Atkins and Perkins. 

Also, the trial record shows that Newton's counsel moved for a 

mental examination in 2004. In that motion, he asserted that while in 

the Macon County jail Newton "engaged in bizarre behavior over an 

extended period of time." (Trial Record, C. 98.) At the conclusion of this 

motion, counsel urged the court to grant the motion pursuant to Rule 11, 

Ala. R. Crim. P., and to allow Newton to have a clinical evaluation to 

determine his present mental condition and his competency to stand 

trial. (Trial Record, C. 99.) That motion was granted, and Newton was 

evaluated by a clinical and forensic psychologist. (Trial Record, C. 107-
CR-2023-0953

56

111.) The report completed by that doctor showed that Newton refused 

to fully cooperate. The report stated: 

"[Newton] showed normal eye contact and showed no unusual 

mannerisms, gestures, nor facial expressions. For the brief 

time that he was interviewed, his thought productivity was 

normal. The structure of his thoughts was logical and 

relevant, although he was evasive. His speech productivity 

was normal with normal flow and he had expressive tone. He 

was coherent and comprehensible at all times during the brief 

evaluation. He demonstrated normal quality of affect with 

normal range of affective response and appropriate control of 

both his feelings and behaviors."

(Trial Record, C. 108-09.) The report concluded "it was evident to the 

examiner that [Newton] possesses the requisite ability to assist his legal 

counsel in his own defense and proceed with a reasonable understanding 

of the legal proceedings against him." (Trial Record, C. 110.) 

For the foregoing reasons, this claim was correctly summarily 

dismissed because Newton failed to plead the full facts in support of the 

claim. See Rule 32.6(b), Ala. R. Crim. P. Therefore, Newton is due no 

relief on this claim.

11.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective because he 

failed to investigate and present evidence that he suffered from an 
CR-2023-0953

57

intellectual disability that barred his sentence of death pursuant to

Atkins v. Virginia, supra.

Newton pleaded, in part: "Trial counsel failed to conduct a 

rudimentary screening of Newton including intake questions to gather 

basic biographical information incumbent upon capital counsel since 

Atkins." (C. 416.) 

When dismissing this claim, the postconviction court stated:

"This claim is insufficiently pleaded. Newton fails to 

plead what rudimentary testing should have been done, what 

it would have shown, or even how that testing would have 

been more revealing than the postconviction review of 

'available school, medical, and clinical records.' While he does 

name two doctors, he fails to plead the purported testimony of 

either or how that might have changed the outcome of the 

case. Merely naming a witness located some 15 years posttrial is simply insufficient in a postconviction proceeding."

(C. 577.) We agree with the postconviction court that Newton failed to 

plead the full facts in support of this claim. Counsel did not plead what 

investigation that counsel should have conducted that would make that 

investigation adequate. Furthermore, though Newton named experts he 

did not plead those experts' expected testimony. In fact, as stated above, 

Newton did not plead his IQ. 
CR-2023-0953

58

The record also shows that trial counsel filed numerous motions 

requesting documents related to Newton. Indeed, the month after 

counsel was appointed, he filed a motion for discovery pursuant to Ex 

parte Monk, 557 So. 2d 832 (Ala. 1989), which required that the State 

maintain an "open file" discovery because Newton had been charged with 

capital murder. (Trial Record, C. 11-13.) In that motion, counsel 

requested copies of all "law enforcement, forensic departments, and 

district attorney's records" related to Newton and his codefendant. 

(Trial Record, C. 12-13.) Counsel then filed an extensive motion for 

production of all documents related to Newton and the case. (Trial 

Record, C. 17-23.) Counsel moved to "facilitate access to defendant's 

department of correction's records." (Trial Record, C. 69.) Counsel moved 

to continue the trial when he was given notice of Henry's statement. 

(Trial Record, C. 77.) Counsel moved for a mental examination to 

determine Newton's competency to stand trial. (Trial Record, C. 98-99.) 

Counsel also presented the testimony of two of Newton's family members 

at the penalty phase. 

Based on the above, we agree with the postconviction court that this 

claim was due to be summarily dismissed as Newton failed to plead the 
CR-2023-0953

59

full facts. See Rule 32.6(b), Ala. R. Crim. P. Therefore, Newton is due no 

relief on this claim. 

12.

Newton next argues that the postconviction-court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

present evidence of his fetal alcohol exposure. 

In pleading this claim, Newton stated: "Competent trial 

representation would have observed the plain physical indicators for 

Newton that [fetal alcohol syndrome] was a very likely issue." (C. 420.) 

In essence, Newton states that his trial counsel should have recognized 

that Newton suffered from fetal alcohol exposure based on his physical 

appearance. 

When dismissing this claim the postconviction court stated:

"This claim is speculative and insufficiently pleaded. 

Newton fails to plead that he is afflicted with Fetal Alcohol 

Syndrome [FAS], why trial counsel should have doubted the 

malingering indication from the Rule 11[, Ala. R. Crim. P.]

report, what specific testing should have been done, what it 

would have shown by those tests, what witnesses would have 

testified to the basis for the FAS inquiry, what the testimony 

of any of the three doctors would have shown, or whether any 

of the witnesses were available to testify during the dates of 

the 2006 trial."
CR-2023-0953

60

(C. 577.) Newton failed to plead that he has fetal alcohol syndrome. He 

merely pleaded that counsel should have recognized that he might have 

fetal alcohol syndrome because he exhibited some of the physical signs. 

In a similar case, this Court stated: 

"McMillan's entire pleading on this claim is based on 

speculation. McMillan did not plead in either his original 

petition or his amended petition that he actually suffered 

from fetal alcohol syndrome or that he had been diagnosed 

with traumatic brain injury. Indeed, the entire argument is 

premised on the fact that counsel 'should have investigated'

and 'might have found' that McMillan suffered from those 

conditions. '[B]y presenting pure speculation and failing to 

plead any specific facts regarding [this issue] ... [the 

appellant] failed to plead facts supporting a general claim of 

prejudice.' Morris v. State, [261 So. 3d 1181, 1192] (Ala. Crim. 

App. 2016). 'Ineffective assistance of counsel claims are not 

built on retrospective speculation ....' Bone v. State, 77 S.W.3d 

828, 833 (Tex. Crim. App. 2002). 'It is well established that, 

in a claim of ineffective assistance of counsel, "[m]ere 

conjecture and speculation are not enough to support a 

showing of prejudice."' Elsey v. Commissioner of Corr., 126 

Conn. App. 144, 166, 10 A.3d 578, 593 (2011) (citation 

omitted). This circuit court properly dismissed this claim 

because no material issue of law or fact exists that would 

entitle McMillan to relief. See Rule 32.7(d), Ala. R. Crim. P."

McMillan v. State, 258 So. 3d 1154, 1178-79 (Ala. Crim. App. 2017).

Moreover, we question the statements of postconviction counsel 

concerning trial counsel's failure to recognize the physical signs of fetal 

alcohol syndrome. As one court has noted:
CR-2023-0953

61

"[A]s this Court has recently noted in another capital habeas 

case, as of the date of petitioner's capital murder trial, i.e., 

2002, 'fetal alcohol syndrome' and 'fetal alcohol effects' were 

terms only just beginning to find acceptance among the 

mainstream within the mental health community. Sells v. 

Thaler, [Civil No. 5A-08-CA-06], (W. D. Tex. June 28, 2012)

[memorandum opinion not reported in the Federal 

Supplement]. Neither term appears in the 2000 edition of the 

DSM-IV-TR.197. Moreover, in her report and affidavit, Dr. 

Murphey states '[p]hysical features associated with severe 

manifestations of this condition are uncertain.' Thus, it is far 

from clear how petitioner's trial counsel can be faulted for 

failing to themselves identify any signs of Fetal Alcohol 

Syndrome or Fetal Alcohol Effects which petitioner might 

have allegedly displayed prior to trial."

Garza v. Thaler, 909 F. Supp. 2d 578, 647 (W.D. Tex. 2012).

The postconviction court did not err in summarily dismissing this 

claim pursuant to Rule 32.6(b), Ala. R. Crim. P. Thus, Newton is due no 

relief on this claim. 

13.

Newton next argues that the postconviction court erred in 

dismissing his claim that his trial counsel was ineffective for failing to 

present evidence of Newton's brain damage and its effect on his 

intellectual capacity.

Newton pleaded, in part: 

"First, this childhood injury calls for a physician with 

research interest in traumatic brain jury to evaluate the 
CR-2023-0953

62

available records and examine Newton. Upon such 

evaluation, a qualified neurologist would be able to advise 

whether to prescribe brain imaging to permit visual and 

quantitative date analysis of the effected regions of Newton's 

brain."

(C. 425.) Newton further pleaded that at the time of Newton's trial Dr. 

Pamela Blake, a neurologist, was available to evaluate him and that Dr. 

Ruben Gur, a professor of psychiatry, radiology, and neurology, was also 

available to review the tests conducted by Dr. Blake. 

When summarily dismissing this claim, the postconviction court 

stated:

"This claim is speculative and insufficiently pleaded. 

Newton does not plead that he suffers cognitive defects, why 

trial counsel should have discounted the Rule 11[, Ala. R. 

Crim. P.,] report, what specific testing should have been done, 

what it would have shown by those tests, what witnesses 

testified to the basis for the [traumatic brain injury] inquiry, 

what the testimony of the doctors would have shown or how 

the outcome would have been different."

(C. 578.) Newton failed to plead that he has been diagnosed with 

traumatic brain injury. The pleadings are based on speculation, i.e., 

what might be discovered if further tests were to be conducted on 

Newton. Therefore, Newton failed to comply with Rule 32.6(b), Ala. R. 

Crim. P., and summary dismissal was proper. Accordingly, Newton is 

due no relief on this claim.
CR-2023-0953

63

14.

Newton next argues that the postconviction court erred in 

dismissing his claim that his counsel was ineffective because he failed to 

prepare and present extensive mitigation evidence. 

The postconviction court stated the following when dismissing this 

claim:

"This claim is insufficiently pleaded in its remainder. 

While the pleading paints a horrible picture, it does so by fiat. 

These claims are unsupported by clear facts attested to by a 

named witness(es) capable of introducing specific testimony 

into evidence, fails to establish the availability of witness(es) 

during the dates of trial, fails to plead that Newton is actually 

afflicted with any stress or adjustment disorders, and further 

fails to plead what additional steps trial counsel should have 

taken.'"

(C. 578-79.) 

Newton's pleadings consist of a narrative about Newton's life. 

Newton did not identify any specific witness who could have testified to 

the facts in the narrative, nor did he plead how any of the evidence could 

have been presented at the penalty phase. He failed to plead the full

facts in support of this claim. As we have stated:

"To sufficiently plead a claim that counsel was 

ineffective for not calling witnesses, a Rule 32 petitioner is 

required to identify the names of the witnesses, to plead with 

specificity what admissible testimony those witnesses would 
CR-2023-0953

64

have provided had they been called to testify, and to allege 

facts indicating that had the witnesses testified there is a 

reasonable probability that the outcome of the proceeding 

would have been different."

Mashburn v. State, 148 So.3d at 1151.

"As with Boyd's previous claims of ineffective assistance of 

counsel, his claim in this regard does not provide a 'clear and 

specific statement of the grounds upon which relief is sought, 

including full disclosure of the factual basis of those grounds.'

Rule 32.6(b), Ala. R. Crim. P. (Emphasis added.) As the 

circuit correctly found, Boyd's petition does not suggest a 

specific alternate defense that his counsel should have 

pursued during the penalty phase of the trial; does not 

disclose a particular mitigating factor that would have been 

revealed had counsel investigated and prepared for the 

penalty phase in some other manner; and does not disclose 

the substance of the expected testimony of any of the potential 

mitigation witnesses whom counsel allegedly failed to 

interview. Thus, the circuit court correctly ruled that the 

claim had not been sufficiently pleaded."

Boyd v. State, 913 So. 2d at 1138-39.

" '"A defendant who alleges a failure to investigate on 

the part of his counsel must allege with specificity what the 

investigation would have revealed and how it would have 

altered the outcome of the trial." United States v. Green, 882 

F.2d 999, 1003 (5th Cir. 1989).' Nelson v. Hargett, 989 F.2d 

847, 850 (5th Cir. 1993). As the circuit court stated, White 

failed to plead what any further investigation would have 

revealed. '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 [344] at 356 [(Ala. Crim. App. 2006)]."

White v. State, 343 So. 3d 1150, 1170 (Ala. Crim. App. 2019).
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The record also shows that at the sentence hearing, defense counsel 

presented the testimony of two witnesses -- one of Newton's sisters, Anita 

Newton, and Newton's father, Arthur Lee Newton. Anita testified that 

she is one of five siblings, that her mother beat them, that her stepfather 

abused them and beat them, that her mother would lock them in a closet, 

and that her mother beat them with an extension cord. (Trial Record, R. 

1082.) Arthur Newton testified that he divorced Newton's mother when 

she was pregnant with their youngest child, that Newton was about 

seven years old when his mother remarried, and that Newton's 

stepfather told him to have no contact with any of the children. (Trial 

Record, R. 1094.)

In the penalty phase, trial counsel also attempted to introduce 

various documents concerning Newton's upbringing. However, the 

circuit court would not allow those documents to be admitted. On direct 

appeal, this Court addressed the claim as follows:

"Newton's second argument is that the trial court 

improperly excluded evidence about 'the bad circumstances of 

[his] upbringing.' (Newton's brief at p. 17.) Specifically, he 

contends that the trial court improperly excluded 

'documentary evidence supporting the defense contention 

that [he] had grown up in a household filled with acts of 

violence and other criminal acts by his step-father.' (Newton's 

brief at p. 20.)
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"During the penalty phase of the trial, Anita Newton, 

Newton's sister, testified that she had two younger brothers 

and two younger sisters, that she did not remember her father 

being in the household, and that her mother remarried Arnold 

Brown. She also testified that Brown "used to take his penis 

out and walk around the house holding it, and he made a pass 

at me more than once," and that Newton was exposed to those 

things. (R. 1085.) Anita further testified that Brown whipped 

them a lot on their behinds and their hands with an extension 

cord. She also testified that Brown and their mother fought 

and hit each other. Finally, she testified that they did not 

have any contact with their real father while they were 

growing up and that Brown did not even like for them to talk 

about him.

"After Anita testified, in an effort to corroborate her 

testimony, the defense sought to admit a divorce decree for 

Newton's mother and Brown and a report from the Alabama 

Board of Pardons and Paroles that showed the various 

offenses Brown had committed. The State objected to the 

admission of the documents, arguing that Anita's credibility 

had not been attacked and that, although one exhibit showed 

that Brown had been convicted of indecent exposure, it did not 

show that it involved Anita or Newton. The trial court 

sustained the State's objection.

"....

"In this case, much of the information that was included in 

the excluded documentation was not relevant and could have 

resulted in a confusion of the issues for the jury. Also, the 

information that was relevant was merely cumulative to 

testimony by Anita that had not been disputed by the State. 

Finally, in its sentencing order, the trial court found that 

certain facts about which Anita testified constituted 

nonstatutory mitigation. Under these circumstances, we do 
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not find that the trial court erred to reversal in excluding the 

documents the defense sought to introduce."

Newton v. State, 78 So. 3d at 464-65. This is clearly not a case where 

defense counsel conducted no investigation. Some mitigation evidence 

was presented at Newton's penalty hearing. 

"As an initial matter, we 'must recognize that trial 

counsel is afforded broad authority in determining what 

evidence will be offered in mitigation.' State v. Frazier (1991), 

61 Ohio St.3d 247, 255, 574 N.E.2d 483. We also reiterate that 

post-conviction proceedings were designed to redress denials 

or infringements of basic constitutional rights and were not 

intended as an avenue for simply retrying the case. Laugesen 

[Laugesen] v. State, [(1967), 11 Ohio Misc. 10, 227 N.E.2d 

663] supra; State v. Lott, [(Nov. 3, 1994), Cuyahoga App. Nos. 

66388, 66389, 66390] supra. Further, the failure to present 

evidence which is merely cumulative to that which was 

presented at trial is, generally speaking, not indicative of 

ineffective assistance of trial counsel. State v. Combs (1994), 

100 Ohio App.3d 90, 105, 652 N.E.2d 205."

Jells v. Mitchell, 538 F.3d 478, 489 (6th Cir. 2008). "The decision of what 

mitigating evidence to present during the penalty phase of a capital case 

is generally a matter of trial strategy." Hill v. Mitchell, 400 F.3d 308, 331 

(6th Cir. 2005).

We agree with the postconviction court that this claim was not 

sufficiently pleaded to survive Rule 32.6(b), Ala. R. Crim. P. Thus, 

summary dismissal was proper, and Newton is due no relief on this claim.
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B.

Newton next argues that the postconviction court erred in finding 

that two of his claims were procedurally barred in his postconviction 

proceedings.

As we have previously stated, the procedural bars of Rule 32, Ala. 

R. Crim. P., apply with "equal force" to all cases even those involving the 

death penalty. See Burgess v. State, 962 So. 2d 272, 277 (Ala. Crim. App. 

2005); Boyd v. State, 764 So. at 374; State v. Tarver, 629 So. 2d 14, 19 

(Ala. Crim. App. 1993).

1.

Newton argues that the postconviction court erred in finding that 

his claim that his sentence of death was barred by Hurst v. Florida, 577 

U.S. 92 (2016), was procedurally barred in this postconviction proceeding.

In finding that this claim was barred, the postconviction court 

stated: "This claim is procedurally barred because it was raised on direct 

appeal. ... It is further without merit even in light of Hurst v. Florida, 

577 U.S. 92 (2016), as the jury necessarily found Newton committed one 

aggravator." (C. 579.) 
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In 2000, the United States Supreme Court released its decision in 

Apprendi v. New Jersey, 530 U.S. 466 (2000), and held that any fact that 

increases a penalty above the statutory maximum must be presented to 

a jury and proven beyond a reasonable doubt. Two years later, in 2002,

that Court released its decision in Ring v. Arizona, 536 U.S. 584 (2002), 

and applied its holding in Apprendi to capital-murder cases. In Hurst, 

the United States Supreme Court

"[a]pplied its holding in Ring [v. Arizona, 536 U.S. 584 (2002),]

to Florida's capital-sentencing scheme and held that Florida's 

capital-sentencing scheme was unconstitutional because, 

under that scheme, the trial judge, not the jury, made the 

'findings necessary to impose the death penalty.' [Hurst v. 

Florida,] 577 U.S. [92], 136 S.Ct. at 622 [(2016)]. Specifically, 

the Court held that Florida's capital-sentencing scheme 

violated the Sixth Amendment right to a trial by jury because 

the judge, not the jury, found the existence of the aggravating 

circumstance that made Hurst death eligible."

Ex parte Bohannon, 222 So. 3d 525, 531 (Ala. 2016).

We note that Newton was tried in 2006, 10 years before the United 

States Supreme Court released its decision in Hurst. Nonetheless, the 

record shows that in February 2002, defense counsel moved that 

Newton's indictment be dismissed based on the recent United States 

Supreme Court's decision in Apprendi. He argued:
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"Defendant Newton contends that the United States 

Constitution and Apprendi [v. New Jersey, 530 U.S. 466 

(2000),] require that a jury finally determine beyond a 

reasonable doubt the existence of aggravating circumstances, 

their relative weight compared to mitigating circumstances, 

and the appropriate sentence in all capital cases. Because the 

Alabama death penalty scheme does not provide for such, it is 

unconstitutional."

(Trial Record, C. 26-28.) After the United States Supreme Court released 

its decision in Ring v. Arizona, in 2002, Newton's trial counsel filed a 

supplement to the motion to dismiss citing the Ring decision. (Trial 

Record, C. 37-41.) The circuit court denied those motions. (Trial Record,

C. 71.)

The record shows that this claim was raised at trial. Also, this 

claim was addressed on direct appeal. 

"[B]ecause the jury convicted Newton of the capital offense of 

robbery-murder, that aggravating circumstance was proven 

beyond a reasonable doubt. Therefore, the jury, and not the 

judge, determined the existence of the 'aggravating 

circumstance necessary for imposition of the death penalty.' 

Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 2443, 153 

L.Ed.2d 556 (2002). Also, because the jury found the existence 

of one aggravating circumstance, Newton was exposed to or 

eligible for the death penalty, and '[t]he trial court's 

subsequent determination that the murder [was] especially 

heinous, atrocious, or cruel is a factor that has application 

only in weighing the mitigating circumstances and the 

aggravating circumstances.' [Ex parte] Waldrop, 859 So. 2d 

[1181] at 1190 [(Ala. 2002)]. Accordingly, there was not a Ring
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violation in this case, and Newton's arguments to the contrary 

are without merit."

Newton v. State, 78 So. 3d at 471. 

The circuit court correctly found that this claim was raised at trial 

and on direct appeal, thus, it was procedurally barred in Newton's 

postconviction proceedings. See Lee v. State, 244 So. 3d 998, 1003 (Ala. 

Crim. App. 2017) ("Lee's Ring/Hurst claim was subject to the procedural 

bars contained in Rule 32.2, Ala. R. Crim. P."); Smith v. State, 71 So. 3d 

12, 34 (Ala. Crim. App. 2008) ("Smith's Ring claim was procedurally 

barred in this postconviction proceeding."). Thus, Newton is due no relief 

on this claim.

2.

Newton last argues that the postconviction court erred in 

dismissing his claim that it was a violation of his constitutional rights to 

sentence him to death based on a verdict in the penalty phase that was 

not unanimous.10

10"Effective April 11, 2017, §§ 13A-5-46 and -47, Ala. Code 1975, 

were amended by Act No. 2017-131, Ala. Acts 2017, to provide that the 

jury's sentencing verdict in a capital-murder trial is no longer a 

recommendation but, instead, is binding upon the trial court." Keaton v. 

State, 375 So. 3d 44, 70 n. 2 (Ala. Crim. App. 2021). These amendments
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72

When dismissing this claim, the postconviction court stated:

"[T]his claim is procedurally barred because it was raised on 

direct appeal. ... It is further without merit, even in light of 

Hurst v. Florida, 577 U.S. 92 (2016), as the jury necessarily 

found Newton committed one aggravator. ... The unanimity 

requirement addressed in Thompson v. Utah, 170 U.S. 343 

(1898). Overruled by Collins v. Youngblood, 497 U.S. 37 

(1990), and Ramos v. Louisiana, 140 S.Ct. 1390 (2020), does 

not apply to the capital penalty phase. Newton is entitled to 

no relief on this claim."

(C. 579.)

As the State asserts in its brief, it does not appear that Newton 

raised this claim on direct appeal. It was raised in a motion filed by trial 

counsel objecting to the application of the death penalty in his case. 

(Trial Record, C. 482-86.) Nonetheless, the postconviction court also 

found that this claim had no merit. 

" '"Alabama law does not require that the jury's advisory 

verdict be unanimous before it can recommend death,"'

Thompson [v. State], 153 So. 3d [84] at 179 [(Ala. Crim. App. 

2012)] (quoting Miller v. State, 913 So. 2d 1148, 1169 n.4 (Ala. 

Crim. App. 2004)), and Keaton cites no case from the United 

States Supreme Court that requires such unanimity. See 

State v. Poole, 297 So. 3d 487, 504 (Fla. 2020), cert. denied 

592 U.S. ___, 141 S. Ct. 1051, 208 L. Ed. 2d 521 (2021) 

(holding that the 'requirement of a unanimous jury' for the 

imposition of the death penalty 'finds no support in' caselaw 

from the United States Supreme Court). See also Lane [v. 

do not apply retroactively. At the time of Newton's trial, the jury's verdict 

was a recommendation. 
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73

State], 327 So. 3d [691] at 776-77 [(Ala. Crim. App. 2020)] 

(noting that '"both this Court and the Alabama Supreme 

Court have upheld death sentences imposed after the jury 

made a less-than-unanimous recommendation that the 

defendant be sentenced to death"' (quoting Brownfield v. 

State, 44 So. 3d 1, 39 (Ala. Crim. App. 2007))). Keaton's 

reliance on Ramos v. Louisiana, 590 U.S. [83], 140 S. Ct. 1390, 

206 L. Ed. 2d 583 (2020), is misplaced because Ramos held 

only that the United States Constitution requires a

unanimous verdict to support a conviction, not a sentence. See 

Ruiz v. Davis, 819 F. App'x 238, 246 n.9 (5th Cir. 2020) (noting 

that the United States Supreme Court held in Ramos that 

'"the Sixth Amendment's right to a jury trial requires a 

unanimous verdict to support a conviction," not a sentence'

(quoting Ramos, 590 U.S. at [93], 140 S. Ct. at 1397))."

Keaton v. State, 375 So. 3d 44, 136-37 (Ala. Crim. App. 2021). "[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, 133 (Ala. Crim. App. 2009). This claim was properly denied on 

the merits. Thus, Newton is due no relief on this claim.

For the foregoing reasons, we affirm the postconviction court's 

summary dismissal of Newton's Rule 32, Ala. R. Crim. P. petition

attacking his capital-murder conviction and sentence of death.

AFFIRMED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.