REL: March 24, 2023

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

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Alabama Court of Criminal Appeals

OCTOBER TERM, 2022-2023

_________________________

CR-21-0393

_________________________

Benjamin Young

v.

State of Alabama

Appeal from Colbert Circuit Court

(CC-16-339.60)

KELLUM, Judge.

Benjamin Young appeals the 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-21-0393

2

In February 2018, Young was convicted of murdering Ki-Jana 

Freeman by shooting Freeman while he was in a vehicle, an offense 

defined as capital by § 13A-5-40(a)(17), Ala. Code 1975, and assault in 

the first degree for shooting Tyler Blythe, a violation of § 13A-6-20(a), 

Ala. Code 1975.1 The jury recommended by a vote of 11 to 1 that Young 

be sentenced to death. The circuit court sentenced Young to death for the 

capital-murder conviction and to 20 years' imprisonment for the assault 

conviction. This Court affirmed Young's convictions and sentences. See 

Young v. State, [Ms. CR-17-0595, August 6, 2021] ___ So. 3d ___ (Ala. 

Crim. App. 2021). The Alabama Supreme Court denied certiorari review. 

See Ex parte Young, (No. 1210291, October 21, 2022).

In July 2020, Young filed a Rule 32 petition attacking his capitalmurder conviction and sentence of death. (C. 7-107.) The State filed its 

response and moved to dismiss the petition. (C. 120-221.) Young 

responded to the State's motion. (C. 222.) In January 2022, the

postconviction court issued a 124-page order summarily dismissing 

1Blythe was shot 13 times but survived his injuries. He testified at 

Young's trial. 
CR-21-0393

3

Young's petition. (R. 640-763.) Young then filed a timely notice of appeal 

to this Court. (C. 780.) 

Section 13A-5-53.1, Ala. Code 1975

The postconviction petition in this case was filed in compliance with 

§ 13A-5-53.1, Ala. Code 1975, and while Young's direct appeal from his 

capital-murder conviction was pending in the Alabama appellate courts. 

That statute specifically provides that Rule 32.2(c), Ala. R. Crim. P., 

which governs the limitation period in which to file a postconviction 

petition, does not apply to death-penalty cases or to any defendant 

sentenced to death after August 1, 2017. See § 13A-5-53.1(j), Ala. Code 

1975. Pursuant to § 13A-5-53.1(c), Ala. Code 1975, a defendant 

sentenced to death shall have 365 days from the date the appellant's first 

brief was filed on direct appeal to file a timely postconviction petition. 

Also, the circuit court, for good cause, may grant one 90-day extension in 

which to file that postconviction petition. See § 13A-5-53.1(d), Ala. Code 

1975.
CR-21-0393

4

Based on this Court's records,2 Young's first brief on direct appeal 

was filed on April 10, 2019. Young sought and was granted a 90-day 

extension to file his postconviction petition. Young's petition was due to 

be filed by July 8, 2020, and was timely filed on July 7, 2020. See § 13A5-53.1, Ala. Code 1975. See Ex parte Marshall, 323 So. 3d 1188 (Ala. 

2020); Stanley v. State, 335 So. 3d 1 (Ala. Crim. App. 2020).

Facts

In August 2021, this Court affirmed Young's capital-murder 

conviction and his sentence of death. In our opinion, we summarized the 

facts surrounding Young's convictions:

"On March 1, 2016, Young attended a meeting of a gang 

called the 'Almighty Imperial Gangsters' held by Thomas 

Hubbard, the leader of the gang, in Hubbard's bedroom at his 

mother's house on Midland Avenue in Muscle Shoals. Other 

members at the meeting were Peter Capote, Dewayne Austin 

Hammonds, Riley Hamm III, De'Vontae Bates, and Michael 

Blackburn. Two days earlier the Hubbards's house had been 

burglarized while Hubbard was attending his grandmother's 

funeral. Several items were stolen from the house, including 

a television, an Xbox game console, a PlayStation game 

console, and some cash. Hubbard reported the burglary to the 

Muscle Shoals Police Department. Officer Raymond Schultz 

of the Muscle Shoals Police Department, who responded to the 

burglary call, testified at trial that Hubbard was upset and 

angry about the burglary. (R. 463.)

2This Court may take judicial notice of its own records. See Hull v. 

State, 607 So. 2d 369, 371 n. 1 (Ala. Crim. App. 1992).
CR-21-0393

5

"Hubbard told everyone in the meeting on March 1 that 

he wanted to find and kill the person who burglarized his 

house. Hubbard asked the gang for help. Bates testified that 

in the meeting they developed a plan to find out who broke 

into Hubbard's house and then 'lure him to a place' and kill 

him. (R. 749.)

"Hammonds, who owned the Xbox game console stolen 

from Hubbard's house, testified that he told Hubbard at the 

meeting that [Ki-Jana] Freeman might have taken the Xbox. 

Hammonds knew Freeman from working with him in the 

past, and he had seen a Facebook post by Freeman 

advertising an Xbox for sale. The gang developed a plan for 

Hammonds to meet with Freeman to see if the Xbox Freeman 

was offering to sell was Hammonds's Xbox. Although the plan 

changed throughout the meeting, the gist of the plan was that 

Hammonds (either alone or with Hamm) would meet with 

Freeman and, if the Xbox was the one stolen from Hubbard's 

house, Hammonds would signal to or call Young and Capote, 

who would take Freeman somewhere to interrogate and kill 

him. Hammonds testified that Young, Capote, and Hubbard 

planned to use Hubbard's SKS rifle and a pistol to kill 

Freeman. (R. 815.) Bates testified that besides the SKS rifle, 

Hubbard owned a .22-caliber revolver and a .45-caliber 

handgun. The State introduced an undated photograph 

showing Hubbard standing in his bedroom holding an SKS 

rifle.

"Hammonds testified that he sent a message to Freeman 

on Facebook Messenger about the Xbox. Hammonds and 

Freeman communicated throughout the day about 

Hammonds purchasing the Xbox from Freeman. Hammonds's 

Facebook Messenger exchange with Freeman was introduced 

at trial.

"A little before 9:00 p.m., Young and his girlfriend, 

Meagan, along with Capote and his girlfriend, Bridgette, left 

Hubbard's house to buy ammunition for the SKS rifle. 
CR-21-0393

6

Meagan testified that Young drove Meagan's car to the 

Gander Mountain outdoor retail store in Florence. Young 

asked Meagan to buy the ammunition, and he told her what 

kind of ammunition to buy. The State introduced surveillance 

footage from Gander Mountain showing Meagan's car pulling 

into the Gander Mountain parking lot. Surveillance footage 

from inside the store showed Meagan buying the ammunition 

at 9:01 p.m., and a receipt from the store showed that Meagan 

bought a box of 7.62X39-millimeter ammunition. The 

surveillance footage showed Meagan returning to the car and 

the car leaving the parking lot. Meagan testified that after she 

bought the ammunition Young drove them back to Hubbard's 

house.

"Around the time Young, Capote, Meagan, and 

Bridgette got back to Hubbard's house from Gander 

Mountain, Hammonds left to go to work at a Wal-Mart in 

Florence. At 9:28 p.m., Hammonds sent Freeman a message 

asking him to call him, and he gave Freeman his cellular 

telephone phone number. Freeman did not call Hammonds 

but sent a message asking if Hammonds still wanted the 

Xbox. Hammonds testified that he never arranged a meeting 

with Freeman and that when he left for work around 9:30 

p.m., the plan was for Bates to 'handle it' by setting up 

Freeman. (R. 823.) Hammonds said that Young, Capote, 

Hubbard, Bates, Hamm, and Blackburn were at Hubbard's 

house when he left for work and that the plan was for them to 

use 'the white Ram' to 'go kill him.' (R. 826-27.) The State 

introduced Hammonds's timecard from Wal-Mart showing 

that Hammonds clocked in to work a little before 10:00 p.m. 

on March 1 and clocked out a little after 6:00 a.m. the next 

morning.

"Around the time Hammonds left for work, Bates sent 

Freeman a message on Facebook Messenger asking him if he 

had '11 hits' of acid he could purchase. (R. 757-58.) Bates 

explained that he volunteered to lure Freeman to the Spring 

Creek Apartments by asking Freeman if he could buy some 
CR-21-0393

7

acid from him. Bates admitted he knew he was setting up 

Freeman so that the others could kill him.

"A little after 10:30 p.m., Young, Capote, Hubbard, and 

Hamm left Hubbard's house in a white pickup truck. Young 

was driving and Capote was in the front passenger's seat. 

Hubbard and Hamm were in the backseat. They had with 

them two large black garbage bags. Bates testified that he 

stayed at Hubbard's house and continued exchanging 

messages with Freeman. Bates relayed all the information he 

received from Freeman to one of the gang member's 

girlfriends, who was at the house with Bates, and the 

girlfriend relayed the information to Young, who was in the 

truck on the way to the Spring Creek Apartments.

"The State introduced surveillance video from the 

Spring Creek Apartments showing a white four-door Dodge 

pickup truck pulling into the apartment complex around 

10:47 p.m. Several minutes later Freeman sent Bates a 

message: 'Boutta pull in. Just passed Fred's.' Bates asked, 

'What kinda car u in cause im in the back.' (C. 479.) Freeman 

responded at 10:58 p.m., 'Blue Mustang. Pulling in now. The 

back on the right road or the left road.' The surveillance video 

shows a blue Mustang vehicle pulling into the parking lot of 

the Spring Creek Apartments at 10:58 p.m.

"Haley Burgner, Freeman's girlfriend, testified that on 

the afternoon of March 1 she and Freeman were 

communicating on Facebook Messenger. Freeman told her he 

planned to meet "Dewayne" to sell him an Xbox. (R. 508.) 

Freeman told Burgner that Tyler Blythe was with him in case 

anything 'goes down.' Later Freeman told Burgner that he 

was heading to meet 'Vonte' to get some money that Vonte 

owed him. At 10:58 p.m., Freeman sent a message to Burgner 

that he was 'getting my cash r[ight] n[ow].' The Facebook 

Messenger exchange between Freeman and Burgner was 

admitted into evidence.
CR-21-0393

8

"Blythe testified that on March 1 he was with Freeman 

when Freeman asked him to ride with him to the Spring 

Creek Apartments to meet Bates. Blythe testified that 

Freeman pulled into the parking lot of the Spring Creek 

Apartment complex and parked the car. Blythe asked 

Freeman why they were there, and Freeman told Blythe they 

were there to sell some acid strips.

"While they were sitting in Freeman's car in the parking 

lot, Blythe and Freeman turned around in their seats to look 

at a white pickup truck that had backed up in the parking lot. 

Blythe testified that they had just turned back around when 

Freeman looked in the rearview mirror and said something to 

Blythe and then, Blythe said, 'they started shooting.' (R. 556.) 

Freeman and Blythe were each shot several times. Blythe did 

not know how many shooters there were, but, he said, 'it 

seemed like more than one.' (R. 559.) Freeman was 

unresponsive at the scene and was pronounced dead a short 

time later. Blythe was taken by ambulance from the scene and 

airlifted to Huntsville Hospital, where he underwent surgery 

and was hospitalized for seven days.

"Jodi Bohn testified that around 11:00 p.m. on March 1 

she was looking out of her apartment window at the Spring 

Creek Apartments when she saw a white pickup truck back 

out of a parking space and stop next to a curb. Bohn saw the 

doors of the truck open. The driver and the front-seat 

passenger got out of the truck and started walking toward the 

back of the truck. Bohn heard gunfire that she thought came 

from more than one weapon, so she moved away from the 

window. Bohn described the driver of the pickup truck as 'big 

and heavy.' (R. 592.) The record shows that Young was 6 feet 

4 inches tall and weighed 270 pounds. (C. 72.)

"In March 2016 Dale Springer lived in an apartment at 

the Chateau Orleans apartments in Muscle Shoals. Shortly 

after midnight on March 2, Springer went outside to smoke a 

cigarette. Springer saw a white Dodge pickup truck with a 

double cab pull into the parking lot of the Chateau Orleans 
CR-21-0393

9

complex 'pretty fast' and back into a parking space. (R. 624.) 

Two men got out of the truck. Springer saw a 'light silver' or 

'light gold' four-door automobile pull into the parking lot. The 

driver of the truck spoke with someone in the car, and the car 

left. The two men from the truck walked away, staying in the 

dark area of the apartment complex. Later that morning 

Springer heard on the radio that police were looking for a

white Dodge pickup truck involved in a shooting, so Springer 

called the police. Law-enforcement officers learned that the 

white truck had been stolen earlier that year.

"Det. [Wes] Holland testified that, after interviewing 

Burgner the morning after the shooting, he began looking for 

Hammonds and Bates. He interviewed Bates on March 3 and 

Hammonds on March 4. Hammonds viewed the surveillance 

video from the Spring Creek Apartments and identified 

Young as the driver of the white truck and Capote as the 

passenger. Hammonds told Det. Holland that, after the 

shooting, Young told him that there were '15 shots that fired 

off' and that he 'took care of it.' (R. 830.) At trial both 

Hammonds and Bates testified that they had seen the 

surveillance video from the Spring Creek Apartments and 

that Young was the driver of the white pickup truck.

"During his interview with Det. Holland on March 4, 

Hammonds provided Young's and Capote's names and 

Hubbard's name and address. Hubbards' house was located 

about one block from Chateau Orleans, where two days earlier 

law-enforcement had located the white pickup truck. Det. 

Holland and Captain Stuart Setliff of the Tuscumbia Police 

Department immediately went to Hubbard's house to set up 

surveillance. They saw Young leave the house in a silver car. 

When other law-enforcement officers tried to stop Young, 

Young 'accelerated to a high rate of speed.' (R. 933.) Young 

led officers from several law-enforcement agencies on a chase 

across state lines into Tennessee, where Young eventually 

wrecked the car and was arrested.
CR-21-0393

10

"Det. Holland took a DNA swab from Young, and 

Young's DNA matched the DNA on a soda can found in the 

white pickup truck. DNA from a cigarette butt found in the 

pickup truck matched DNA from a swab taken from Capote.

"Shawn Settles testified that, from August 2015 to May 

2016, he was in the Colbert County jail awaiting trial on a 

second-degree-robbery charge and a fraudulent-use-of-acredit-card charge. In March 2016 Hubbard, who had been 

arrested for Freeman's murder, became Settles's cellmate. 

Capote, who had also been arrested for Freeman's murder, 

was placed in a nearby cell. Settles testified that Hubbard and 

Capote communicated with each other and with Settles about 

the details of Freeman's murder. Settles helped Hubbard and 

Capote pass notes back and forth to each other, and, rather 

than destroy the notes for Hubbard as Hubbard thought 

Settles was doing, Settles secretly kept the notes. Settles 

testified at trial that he had been convicted of second-degree 

robbery and fraudulent use of a debit card and that he was 

testifying at trial based on an agreement with the State.

"Based on information from Settles, law-enforcement 

officers got a search warrant for property in Franklin County, 

Alabama. Law-enforcement officers found an SKS rifle and a 

black magazine for the SKS buried in two black garbage bags 

on the property."

Young, ___ So. 3d at ___ (footnotes omitted).

Two of Young's accomplices have been convicted for their roles in 

the murder of Freeman and the assault of Blythe. Peter Capote was 

convicted of capital murder and assault in the first degree and was 

sentenced to death. This Court affirmed his conviction and death 

sentence on direct appeal. See Capote v. State, 323 So. 3d 104 (Ala. Crim. 
CR-21-0393

11

App. 2020). Thomas Hubbard was convicted of capital murder and 

assault in the first degree and was sentenced to life imprisonment 

without the possibility of parole. This Court affirmed his conviction and 

sentence on direct appeal. See Hubbard v. State, 324 So. 3d 855 (Ala. 

Crim. App. 2019). 

As noted above, two of Young's accomplices testified at Young's trial 

-- Austin Hammonds and De'Vontae Bates. Hammonds testified that at

the time of Young's trial he had not been charged with any offense related 

to the murder and assault. (Trial R. 840-43.) Bates testified that he had 

been convicted of conspiracy to commit murder but was awaiting his 

sentence for that conviction. In exchange for Bates's truthful testimony 

at Young's trial, Bates said, the State would recommend that his sentence 

for that conviction be 20 years. (Trial R. 722.) 

Standard of Review

Young filed this postconviction petition attacking his capitalmurder conviction and sentence of death. According to Rule 32.3, Ala. R. 

Crim. P., Young bears the sole burden of pleading all of his claims in his 

petition.

"The petitioner shall have the burden of pleading and 

proving by a preponderance of the evidence the facts 
CR-21-0393

12

necessary to entitle the petitioner to relief. The state shall 

have the burden of pleading any ground of preclusion, but 

once a ground of preclusion has been pleaded, the petitioner 

shall have the burden of disproving its existence by a 

preponderance of the evidence."

According to Rule 32.7(d), Ala. R. Crim. P., a circuit court may 

summarily dismiss a petition: 

"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 32.6(b), Ala. R. Crim. P., further provides:

"The petition must contain a clear and specific 

statement of the grounds upon which relief is sought, 

including full disclosure of the factual basis of those grounds. 

A bare allegation that a constitutional right has been violated 

and mere conclusions of law shall not be sufficient to warrant 

any further proceedings."

In regard to the pleading requirements of Rule 32, Ala. R. Crim. P., 

this Court has stated:

"'Rule 32.6(b) requires that the petition itself disclose 

the facts relied upon in seeking relief.' Boyd v. State, 746 So.

2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not 

the pleading of a conclusion 'which, if true, entitle[s] the 

petitioner to relief.' Lancaster v. State, 638 So. 2d 1370, 1373 
CR-21-0393

13

(Ala. Crim. App. 1993). It is the allegation of facts in pleading 

which, if true, entitle a petitioner to relief. After facts are 

pleaded, which, if true, entitle the petitioner to relief, the 

petitioner is then entitled to an opportunity, as provided in 

Rule 32.9, Ala. R. Crim. P., to present evidence proving those 

alleged facts."

Boyd v. State, 913 So. 2d 1113, 1125 (Ala. Crim. App. 2003).

We have characterized the burden of pleading in regard to a 

postconviction petition 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 

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). 

"'An evidentiary hearing on a [Rule 32] petition is 

required only if the petition is "meritorious on its 

face." Ex parte Boatwright, 471 So. 2d 1257 (Ala.

1985). A petition is "meritorious on its face" only 

if it contains a clear and specific statement of the 

grounds upon which relief is sought, including full 

disclosure of the facts relied upon (as opposed to a 
CR-21-0393

14

general statement concerning the nature and 

effect of those facts) sufficient to show that the 

petitioner is entitled to relief if those facts are true. 

Ex parte Boatwright, supra; Ex parte Clisby, 501 

So. 2d 483 (Ala .1986).'

"Moore v. State, 502 So. 2d 819, 820 (Ala. 1986)."

Bracknell v. State, 883 So. 2d 724, 727-28 (Ala. Crim. App. 2003).

The majority of the claims raised by Young involve allegations that 

his counsel's performance at his capital-murder trial was deficient. 

When reviewing a claim of ineffective assistance of counsel, we apply the 

standard adopted by the United States Supreme Court in Strickland v. 

Washington, 466 U.S. 668 (1984). 

"First, the defendant must show that counsel's 

performance was deficient. This requires showing that 

counsel made errors so serious that counsel was not 

functioning as the 'counsel' guaranteed the defendant by the 

Sixth Amendment. Second, the defendant must show that the 

deficient performance prejudiced the defense. This requires 

showing that counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable. 

Unless a defendant makes both showings, it cannot be said 

that the conviction or death sentence resulted from a 

breakdown in the adversary process that renders the result 

unreliable."

Strickland, 466 U.S. at 687.

Regarding claims that counsel's performance was deficient, this 

Court has stated:
CR-21-0393

15

"To sufficiently plead an allegation of ineffective 

assistance of counsel, a Rule 32 petitioner not only must 

'identify the [specific] acts or omissions of counsel that are 

alleged not to have been the result of reasonable professional 

judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104 

S.Ct. 2052, 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 344, 356 (Ala. Crim. App. 2006).

A postconviction petition may also be summarily dismissed on the 

merits of the claims raised in the petition.

" '"Where a simple reading of the petition for post-conviction 

relief shows that, assuming every allegation of the petition to 

be true, it is obviously without merit or is precluded, the 

circuit court [may] summarily dismiss that petition."' 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')."

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

Last, "[t]his Court may affirm the judgment of the circuit court for 

any reason, even if not for the reason stated by the circuit court." Acra 

v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012).
CR-21-0393

16

At trial, Young was represented by attorneys Ben Gardner, Jr., 

Nathan Johnson, and Leigh Anne Landis. 

Guilt-Phase Issues

I.

Young argues that the postconviction court erred in summarily 

dismissing his claims that his counsel was ineffective at the guilt phase 

of his capital-murder trial because, he says, counsel failed to adequately 

investigate and present evidence that he was not guilty. Young raises 

numerous claims regarding this issue -- we review each claim 

individually.

Initially, Young argues that, when summarily dismissing his 

claims, the postconviction court confused the burden of pleading with the 

burden of proof and incorrectly dismissed his claims of ineffective

assistance of counsel. 

This Court has discussed the distinction between the burden of 

pleading and burden of proof in relation to a postconviction proceeding:

"'[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 only provide "a clear and specific 

statement of the grounds upon which relief is 
CR-21-0393

17

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

petitioner has met his burden of pleading so as to 

avoid summary disposition pursuant to Rule 

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

opportunity to present evidence in order to satisfy 

his burden of proof.'

"Ford v. State, 831 So. 2d 641, 644 (Ala. Crim. App. 2001). A 

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 a burden to plead. 

See Smith v. State, 581 So. 2d 1283, 1284 (Ala. Crim. App.

1991) ('When the State does not respond to a petitioner's 

allegations, the unrefuted statement of facts must be taken as 

true. Chaverst v. State, 517 So. 2d 643, 644 (Ala. Crim. App.

1987). Further, when a petition contains matters which, if 

true, would entitle the petitioner to relief, an evidentiary 

hearing must be held. Ex parte Boatwright, 471 So. 2d 1257, 

1258 (Ala. 1985).')."

Johnson v. State, 835 So. 2d 1077, 1079–80 (Ala. Crim. App. 2001). For 

the reasons stated in this opinion, we conclude that the postconviction

court did not confuse the burden of pleading with the burden of proof. 

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

Young further argues that the postconviction court erred in 

considering his ineffective-assistance-of-counsel claims individually and 

not cumulatively as, he says, the law mandates. "When considering 

whether the claims of ineffective assistance of counsel were sufficiently 

pleaded, the circuit court correctly considered each claim individually." 
CR-21-0393

18

Washington v. State, 95 So. 3d 25, 58 (Ala. Crim. App. 2012). "[T]o satisfy 

the pleading requirements of Rule 32, each claim of a petition must 

contain a clear and specific statement of the grounds for relief and the 

underlying facts that, according to the petitioner, provide the basis for 

the grounds for relief. Even ineffective assistance of counsel claims must

be pleaded sufficiently." Taylor v. State, 157 So. 3d 131, 139-40 (Ala. 

Crim. App. 2010). Nothing in the postconviction court's order reflects 

that it considered the wrong burden of proof or that it violated this 

Court's holding in Washington, supra. Thus, this claim is meritless. 

The State first asserts that the majority of the issues raised by 

Young in his brief to this Court are waived, pursuant to Rule 28(a)(10), 

Ala. R. App. P., because Young's brief is substantially the same as the 

postconviction petition that Young filed in the Colbert Circuit Court. 

The State relies on this Court's decision in Morris v. State, 261 So. 3d 

1181 (Ala. Crim. App. 2016), to support this argument. In Morris, we

stated:

"Morris's obligation as the appellant was to present an 

argument in support of his position on appeal, and his 

argument on appeal is that the circuit court erred when it 

dismissed the claims of ineffective assistance of counsel. With 

respect to that issue, Morris was required to set out the 

reasons supporting his argument that the circuit court erred, 
CR-21-0393

19

with citations to legal authorities supporting that argument, 

and citation to parts of the record relied on as support for his 

claim of error. Morris's argument that the trial court 

improperly dismissed the 19 claims of ineffective assistance of 

counsel is unsupported by any of the above. The mere 

repetition of the claims alleged in the Rule 32 petition does 

not provide any analysis of the circuit court's judgment of 

dismissal; obviously there was no judgment of dismissal until 

after the petition was filed."

Morris, 261 So. 3d at 1194-95. Young's postconviction petition is 104 

pages in length and his brief is 98 pages. While some issues raised in 

Young's postconviction petition are very similar to the arguments made 

on appeal, they are not identical. Indeed, the State does not make this 

argument for every issue that Young raises in his brief to this Court. 

Accordingly, we will consider Young's arguments on appeal. 

A.

Young first argues that his trial counsel was ineffective for failing 

to interview Colton Vickery, "a peer of Austin Hammonds," and for failing 

to present Vickery's testimony at Young's trial. (Young's brief at p. 58.) 

Young pleaded in his postconviction petition that Vickery told an 

investigator that he and De'Vontae Bates planned to kill both Freeman 

and Blythe. Young pleaded that Vickery's testimony "would have 

suggested to the jury that Hammonds was more involved than he 
CR-21-0393

20

portrayed and would have controverted Bates's testimony, thus 

undermining the State's case." (C. 131.)

When addressing Young's claim that trial counsel was ineffective 

for failing to interview Vickery, the postconviction court made the 

following findings:

"Young fails to state a valid claim for relief or present a 

material issue of fact or law under Rule 32.7(d) of the 

Alabama Rules of Criminal Procedure. Testimony from 

Vickery that Bates and Hammonds targeted Blythe and 

Freeman would have been cumulative to the testimony 

presented at trial. Bates testified that he targeted Freeman 

for the theft of Hubbard's Xbox and intended Freeman's 

death. Hubbard likewise testified that Freeman was 

targeted. '[A] petitioner cannot satisfy the prejudice prong of 

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

evidence that is merely cumulative of evidence already 

presented at trial.' Benjamin v. State, 156 So. 3d 424, 453 

(Ala. Crim. App. 2013).

"Moreover, Young fails to satisfy the specificity and full 

factual pleading requirements of Rules 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. Young fails to 

sufficiently plead how failure to interview Vickery and 

present his testimony fell below any standard of professional 

norm. Young suggests that counsel's actions were 

unreasonable as compared to those of Capote's and Hubbard's 

counsel, because in their trials, Vickery testified. However, 

the Court notes that Capote was convicted and sentenced to 

death and Hubbard was convicted and sentenced to life 

without the possibility of parole. In light of this fact, Young's 

failure to explain how the testimony of Vickery would have 

changed the result of his own case is significant.
CR-21-0393

21

"Furthermore, Young fails to plead how counsel's 

'failure' was not part of a reasonable trial strategy. Calling 

Vickery to testify would have exposed the jury to another 

witness connected to gang activity. Distancing Young from 

further unnecessary, cumulative gang activity is a reasonable 

trial strategy in a case predicated on gang activity. Young 

likewise fails to plead how counsel's actions actually 

prejudiced him in light of the testimony given by Bates and 

Hammonds. Thus, Young fails to plead facts that, if true, 

would prove either Strickland [v. Washington, 466 U.S. 668 

(1984),] prong. Such 'bare claims' are insufficient to warrant 

further proceedings. Rule 32.6(b), Ala. R. Crim. P."

(C. 657-58.) 

 To sufficiently plead a claim regarding counsel's failure to call a 

witness, this Court has stated that 

"a Rule 32 petitioner is required to identify the names of the 

witnesses, to plead with specificity what admissible testimony 

those witnesses would 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 1094, 1151 (Ala. Crim. App. 2013). 

Summary dismissal of this claim was proper because Young failed 

to plead how he was prejudiced, i.e., that there was a "reasonable 

probability that the outcome of the proceeding would have been different"

had Vickery testified. Mashburn, 148 So. 3d at 1151. 
CR-21-0393

22

Also, several witnesses testified that Hammonds targeted Freeman 

because he had stolen an Xbox from Hubbards's house and that the gang 

planned to lure Freeman to the parking lot of an apartment complex to 

kill him. 

"The fact that there were other witnesses available who could 

have testified ... does not demonstrate that counsel was 

ineffective in choosing the theory and strategy that was 

presented at the penalty phase.' Barnhill v. State, 971 So. 2d 

106, 116 (Fla. 2007). '[C]omplaints of uncalled witnesses are 

not favored in federal habeas corpus review because the 

presentation of testimonial evidence is a matter of trial 

strategy and because allegations of what a witness would 

have stated are largely speculative.' Day v. Quarterman, 566 

F.3d 527, 538 (5th Cir. 2009). 'Whether to present certain 

testimonial evidence is a matter of trial strategy, and 

complaints of uncalled witnesses are generally disfavored.' 

Sanders v. United States, 314 Fed. App'x 212, 213 (11th Cir.

2008)."

Walker v. State, 194 So. 3d 253, 291 (Ala. Crim. App. 2015).

 Indeed, the evidence against Young was compelling. The State 

presented evidence indicating that Young's girlfriend purchased

ammunition on the night of the shootings. Several people who lived

nearby testified that a white pickup truck drove into the area right before 

the shooting started; one witness said that the driver, who was big and 

heavy, got out and walked toward another car. DNA evidence discovered 

on a soda can found in the truck matched Young's DNA. Surveillance 
CR-21-0393

23

video showed a white truck come into the complex and a heavy set man3

exit the driver's side of that truck. Finally, two of Young's accomplices 

testified that Young was one of the two men shooting at the two victims. 

In a one-paragraph argument in this section of Young's brief, Young

argues that his trial counsel was ineffective for failing to obtain 

information from Hammonds's cellular telephone that had been turned 

over to police during the investigation. Young's pleadings on this claim 

merely consist of the following: "Counsel knew that Hammonds had 

identified Freeman as a target and initiated the plan to contact and lure 

Freeman to the site where he was killed. Counsel knew that this phone 

was obtained by the State yet sought no discovery of its contents." (C. 

24.)

In finding that this claim had no merit and was insufficiently 

pleaded, the postconviction court stated:

"Young fails to state a valid claim for relief or present a 

material issue of fact or law under Rule 32.7(d) of the 

Alabama Rules of Criminal Procedure. Information obtained 

from Hammonds's phone that he targeted and initiated a plan 

to lure Freeman to his death would have been cumulative to 

the evidence presented at trial. ...

3"Young was 6 feet 4 inches tall and weighed 270 pounds," at the 

time of the shootings. Young, ___ So. 3d at ___.
CR-21-0393

24

"Moreover, Young fails to satisfy the specificity and full 

factual pleading requirements of Rule 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. Young fails to plead 

what specific, relevant, and admissible evidence could have 

been obtained from Hammonds's phone. "

(C. 659.) 

Young failed to plead what evidence was on Hammonds's cellular

telephone that counsel failed to obtain and failed to plead how he was 

prejudiced by the failure to obtain that evidence. Young failed to plead 

the full facts to comply with the pleading requirements of Rule 32.6(b), 

Ala. R. Crim. P. Therefore, summary dismissal was proper, and Young 

is due no relief on this claim.

B.

Young next argues that his trial counsel was ineffective for failing 

to develop and present a coherent defense theory. He makes several 

different arguments in support of this claim.

1.

First, Young argues that his trial counsel failed to offer an adequate

opening statement. Specifically, Young pleaded that defense counsel's 

opening statement was incoherent and that in that statement counsel

told the jury that the defendant had not been present at the shootings 
CR-21-0393

25

but had no evidence to support that assertion and did not present any 

such evidence at trial.

In summarily dismissing this claim, the postconviction court made 

the following pertinent findings:

"It is plain from the face of the record that, as [Ben] 

Gardner indicated he would do during his opening, counsel 

questioned Hammonds and Bates as to their own involvement 

in the murder, motives to lie and point the finger at Young, 

plea deals, and ability to identify Young from the Spring 

Creek Apartments security footage despite the quality of the 

video. And as Young acknowledges in his petition, counsel 

introduced the idea that Hammonds and Bates could not be 

trusted to give accurate, truthful, and unbiased testimony 

during opening statements. Notably, trial counsel returned 

to that theory in closing arguments. Moreover, this strategy 

served to remind the jury that the prosecutor's passionate 

opening statement was not evidence, but rather, what 

mattered most was the credibility of the witnesses. 

Consequently, it is clear on the face of the record that trial 

counsel presented a reasonable defense theory, challenged the 

State's theory, and developed the defenses discussed in 

opening statements. 

"Moreover, Young fails to satisfy the specificity and full 

factual pleading requirements of Rules 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. The State's theory of 

the case was that Young was present at, and helped commit, 

the murder of Freeman. Trial counsel refuted this theory by 

asserting Young's innocence: 'He didn't do it. He wasn't 

there.' ... Young fails to name any witness that counsel could 

have called, what questions counsel could have asked that 

witness, and if that witness would have been willing to testify. 

...
CR-21-0393

26

"Young likewise fails to plead any other reasonable 

strategy counsel should have utilized. Three key pieces of 

evidence presented by the State against Young were the 

testimony of Hammonds, Bates, and their identification of 

Young in the security video. To undercut the State's theory 

that Young was there and was one of the shooters, it was a 

reasonable strategy on counsel's part to undermine the 

testimony and credibility of Hammonds and Bates. Young 

does not specify any other coherent defense strategy counsel 

could have introduced during opening statements."

(C. 661-64.)

Young asserted bare allegations that counsel was deficient in his 

opening statement. In fact, his entire pleadings consist of what Young 

maintains counsel did wrong. Young failed to plead what a "coherent 

defense" or opening would have consisted of or what counsel should have 

stated in opening statement. Also, Young did not plead any facts 

indicating that there was an alternative defense involving an alibi. 

"[The appellant] made bare and conclusory allegations that 

counsel failed to put forth a coherent defense theory and to 

challenge the State's case during opening and closing 

statements, but he failed to allege in his petition what he 

believed counsel should have said during opening and closing 

statements."

Stanley v. State, 335 So. 3d 1, 43 (Ala. Crim. App. 2020). 

Moreover, opening statements are typically matters of trial 

strategy. "'[T]here is no constitutional rule that counsel must employ 
CR-21-0393

27

any particular rhetorical technique in the opening statement.' Cirincione 

v. State, 119 Md. App. 471, 498, 705 A.2d 96, 108 (1998)." Washington v. 

State, 95 So. 3d 26, 65 (Ala. Crim. App. 2012).

In regard to Young's claim that his trial counsel failed to keep a 

promise made in opening, this Court has stated: 

"[N]umerous courts have held that counsel's failure to keep a 

promise made in opening statements rarely constitutes 

ineffective assistance of counsel. See Hampton v. Leibach, 290 

F. Supp. 2d 905, 928 (N.D. Ill. 2001) ('An attorney's failure to 

fulfil promises made in opening statement is not often a 

successful basis for an ineffective assistance claim. The 

decision to change strategy during trial is often forced upon 

defense counsel by the vagaries of the courtroom arena.'); 

United States ex rel. Johnson v. Johnson, 531 F.2d 169, 177 

n. 19 (3d Cir. 1976) ('We do not intimate ... that a lawyer of 

normal competence could not promise to produce evidence in 

this opening statement and then change his mind during the 

course of the trial and not produce the promised evidence.'). 

See also Fayemi v. Ruskin, 966 F.3d 591, 594 (7th Cir. 2020) 

('[T]he Supreme Court has never hinted at a per se rule that 

defense lawyers must keep all promises made in opening 

statement, even if a mid-trial change in circumstances alters 

the defense strategy.')."

State v. Lewis, [Ms. CR-20-0372, May 6. 2022] ___ So. 3d ___, ___ (Ala. 

Crim. App. 2022).

Based on the cases cited above, we agree with the postconviction

court that there was no material issue of fact or law that would have 

entitled Young to relief on this claim. Summary dismissal was proper. 
CR-21-0393

28

See Rule 32.7(d), Ala. R. Crim. P. For these reasons, Young is due no 

relief on this claim.

2.

Young next argues that his trial counsel failed to adequately crossexamine key State witnesses. 

"'[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 Rosario–

Dominguez 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)."

A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007).

To sufficiently plead a claim that counsel was ineffective in crossexamination of a witness, or lack of cross-examination, a Rule 32 

petitioner must plead what "questions would have resulted" in an 

adequate cross-examination and further "plead any facts indicating that 

counsel's decision not to cross-examine [the witness] was not sound trial 

strategy." A.G. v. State, 989 So. 2d at 1173.
CR-21-0393

29

a.

Young first asserts that his trial counsel was ineffective in its crossexamination of Hammonds because, he says, counsel failed to crossexamine Hammonds concerning the inconsistencies in his multiple 

statements to police, his plans to lie to authorities, and his plan with 

Bates to set up Freeman and Blythe. Young further pleaded that counsel 

was ineffective for playing Hammonds's videotaped statement to the jury.

When summarily dismissing this claim, the postconviction court 

stated:

"The jury certainly heard Hammonds's admission and was 

therefore aware that he had lied to police. Moreover, trial 

counsel was able to remind the jury of that fact during closing 

arguments. Similarly, counsel made sure that the jury saw 

Hammonds's videotaped statement, which showed his 

demeanor, his pleas for leniency, and his shifting statements. 

"....

"Young next claims that counsel were ineffective for 

failing to cross-examine Hammonds about his initial plan 

with Bates to lie to authorities. ...

"Young fails to satisfy the specificity and full factual 

pleading requirements of Rules 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. As for the coverup 

effort by Bates and Hammonds, Young fails to plead how such 

testimony would have made a difference in his trial, especially 

considering that Hammonds had already admitted to lying to 

the police, he testified that he had lied at Bates's request, and 
CR-21-0393

30

he testified that he and Bates had spoken about lying to 

police. Moreover, Young fails to plead how Hammonds's 

answers would have saved Young from conviction when they 

did not save Hubbard from conviction of capital murder. ... 

"....

"Young next claims that counsel was ineffective for 

failing to ask Hammonds about his plan with Vickery to set 

up Freeman and Blythe. 

"As addressed above, Young fails to state a valid claim 

for relief or present a material issue of fact or law under Rule 

32.7(d) of the Alabama Rules of Criminal Procedure. 

Testimony from Vickery that Hammonds targeted Blythe and 

Freeman would have been cumulative to the testimony 

presented at trial. Bates and Hubbard both testified that 

Freeman was targeted and marked for death. Further, 

Hammonds testified that he contacted Freeman directly as 

part of the plan to set him up. ...

"Finally, Young claims that introducing Hammonds's 

videotaped statement was ineffective. ... Young's claim 

focuses entirely on the alleged negative impact of trial 

counsel's strategic decision to play the videotape of 

Hammonds's statement and entirely fails to account for the 

positive ways in which trial counsel made use of it. As 

discussed above, trial counsel was able to reference Young's 

statement during closing arguments to point out Young's 

inconsistencies, pleas for leniency, and his consistent 

preoccupation with avoiding arrest. Counsel made use of that 

evidence to portray Hammonds as a liar who would say 

anything to stay out of prison. Considering how counsel 

actually used this evidence, Young fails to explain why trial 

counsel's decision to play the video was not a matter of sound 

trial strategy. Similarly Young fails to plead facts showing 

that the benefits of the videotape were outweighed by the 

disadvantages of doing so. Thus, Young has failed to plead 
CR-21-0393

31

facts that, if true, would establish either Strickland [v. 

Washington, 466 U.S. 668 (1984),] prong."

(C. 666-72.) 

Young failed to plead what counsel should have asked on crossexamination and did not plead any facts that suggested that counsel's 

actions were not strategic. A.G. v. State, 989 So. 2d at 1173. Summary 

dismissal of this claim was proper. 

Moreover, the trial record shows that the State questioned 

Hammonds about his first statement to police and that Hammonds 

admitted that he had lied to police. (Trial R. 836.) The State also elicited 

testimony from Hammonds that Bates had asked him to lie. The crossexamination by defense counsel shows that counsel chose to concentrate 

on the fact that, of the individuals involved in the shooting, Hammonds 

was the only one that had not been charged with any offense, and that,

he thus had a great motivation to lie at Young's trial. (Trial R. 841.)

Also, trial counsel's decision to play Hammonds's videotaped 

statement to the jury was clearly a strategic decision. The jurors could 

see for themselves by viewing the tape and viewing Hammonds's trial 

testimony that he had lied to police. Thus, there was also no material 
CR-21-0393

32

issue or fact or law that would entitle Young to relief. See Rule 32.7(d), 

Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.

b.

Young next argues that his trial counsel was ineffective for failing 

to adequately cross-examine Bates. Specifically, he pleaded that trial 

counsel should have cross-examined Bates concerning the terms of his 

plea agreement with the State and should have questioned him about his 

inconsistent statements to police.

In summarily dismissing this claim, the postconviction court stated:

"Young does not plead how counsel could have 

discredited Bates with further questioning. Indeed, Young 

does not specify a single question counsel should have asked 

to discredit Bates, Bates's response, or how Bates's response 

would have further discredited him. Moreover, Young fails to 

plead how counsel's alleged failures actually prejudiced him, 

especially considering that, since the jury watched the same 

video, it could determine the quality of the video and give 

Bates's identification of Young its due weight. Thus, Young 

has failed to plead facts, that, if true, would establish either 

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

"Young next claims that counsel failed to question Bates 

about the inconsistencies between his first and second 

statements to law enforcement. Young claims that if counsel 

had questioned Bates about his inconsistent statements to 

police, the jury would have learned that Bates and 

Hammonds were the only two in the gang that knew Freeman 

and Blythe, and that Hammonds and Hubbard had 

engineered the shooting.
CR-21-0393

33

"...This testimony would have been cumulative at best, 

as Bates had already testified on direct that none of the people 

involved in the shooting, other than himself and Hammonds, 

knew Freeman. Bates had already testified on direct that 

Hammonds and Hubbard engineered the shooting, and that it 

was Bates's job to set Freeman up for the shooting. Bates had 

likewise already testified on direct that, during his first 

meeting with police, he told officers that he was at the 

shooting.

"....

"Young next claims that counsel failed to adequately 

cross-examine Bates about his plan with Hammonds to 

concoct a story to police, which Young claims would have 

made Hammonds look just as culpable and devious. 

"...Young's claim hinges on the assumption that Bates 

would have given a different answer to defense counsel than 

he gave on direct. But Young fails to plead facts showing that 

Bates would have given a different response. ...

"...Young's specific contention that the jury would have 

known that Bates's proffer agreement and plea deal were in 

evidence without defense counsel's guidance is meritless, as 

the jury had the ability to review all pieces of evidence 

presented at trial. Though defense counsel did not publish 

the deal and agreement to the jury, counsel did introduce 

them into evidence, and, thus, they were available to the jury 

during deliberations. Moreover, during closing arguments, 

defense counsel pointed out to the jury that Bates had lied to 

the police, and the jury heard Bates give this testimony on 

direct. Young fails to specify any other particular lie counsel 

should have chosen to highlight during closing, or why 

counsel's decision to address the lies collectively was 

unreasonable. Moreover, Young fails to plead how counsel's 

strategy actually prejudiced him. Thus, Young has failed to 
CR-21-0393

34

plead facts that, if true, would establish either Strickland

prong."

(C. 672-77.)

Young failed to plead what counsel should have asked Bates on 

cross-examination; thus, we agree with the postconviction court that 

Young failed to plead the full facts necessary to survive summary 

dismissal on this claim. See Rule 32.6(b), Ala. R. Crim. P.

Moreover, the trial record shows that before Bates testified a 

lengthy hearing was held outside the presence of the jury. Young's 

counsel moved to suppress Bates's testimony. The trial court noted that 

it had granted Young's motion to suppress all statements that Bates 

made on July 7, 2017. On voir dire and outside the presence of the jury, 

Young's counsel then questioned Bates about the specific terms of his 

plea agreement with the State, and the facts and introduced that 

agreement. (Trial R. 712-17.) When the jury was brought back into the 

courtroom, the prosecutor questioned Bates extensively about the terms 

of his plea agreement with the State, that he had pleaded guilty to 

conspiracy to commit murder, that he was currently incarcerated in 

Colbert County jail, and that he had an agreement with the State that in 

exchange for his truthful testimony the State would recommend a 
CR-21-0393

35

sentence of 20 years. (Trial R. 722-24.) The jury was aware of the terms 

of the State's plea agreement with Bates; therefore, any further 

discussion on that subject would have been repetitive. The record also

shows that the State questioned Bates about his statement to police and 

that Bates testified that he lied to police and that he had asked 

Hammonds to lie for him. On cross-examination counsel questioned 

Bates concerning his ability to identify Young from the video given the 

condition of the videotape.

 The trial record shows that the issues Young pleaded were not 

presented to the jury were, in fact, presented to the jury. Thus, summary

dismissal of this claim was also proper because it failed to present an

issue of fact or law that would entitle Young to relief. See Rule 32.7(d), 

Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.

c.

Young next argues that his trial counsel was ineffective for failing 

to adequately cross-examine Megan Bryant about Young's drug use on 

the day of Freeman's murder.4 Specifically, he asserts that counsel 

4In Young's postconviction petition, this witness's name is spelled 

"Megan"; in the trial transcript her name is spelled "Meagan."
CR-21-0393

36

should have questioned Bryant about the fact that Young took drugs 

throughout the day and was intoxicated at the time of the shooting. 

Young further asserts that counsel should have questioned Bryant about 

her losing custody of her child and whether the State had indicated it was 

going to help her regain custody. 

The postconviction court made the following findings on this claim:

"Young fails to plead how counsel's decision not to 

question Bryant on Young's drug use was not a matter of 

sound trial strategy. The jury had already heard testimony 

that the gang was involved in the drug trade. By refraining 

from asking Bryant questions about Young's drug use, the 

jury did not hear testimony, offered by Young's own defense 

team, that could have tainted their opinion of Young. In the 

same vein, had counsel questioned Bryant on her breakup 

with Young, Bryant might have testified, as Young 

acknowledges, that Young had cheated on her, or, at the very 

least appeared to be straying from their relationship. This 

information could have painted Young as a dishonest person, 

which in turn, could have tainted the jury's opinion of him. 

Young fails to plead why no reasonable attorney in counsel's 

position would have done the same. ...

"Furthermore, Young claims there were indications that 

Bryant lost custody of her child, but Young does not provide 

any information in support of this contention. Young fails to 

plead on what days she lost her child, in what county, and for 

what reason Bryant lost custody of her child. Young likewise 

fails to plead facts that, if true, would establish that Bryant 

could not regain custody of her child without cooperating with 

law enforcement and the District Attorney's Office. Thus, 

Young fails to plead facts that, if true, would establish either 

Strickland [v. Washington, 466 U.S. 668 (1984)] prong."
CR-21-0393

37

(C. 677-80.)

Young failed to plead the full facts in regard to this claim. Young 

made a bare assertion that counsel did not question Bryant about 

Young's drug use but failed to plead any facts surrounding his supposed 

drug use on the day of the shootings. Nor did Young plead any facts 

surrounding his assertion that the State was going to assist Bryant with

her child-custody problems.

A review of the trial record shows that defense counsel extensively 

cross-examined Bryant about her drug use on the day of the shootings in 

a clear effort to discredit her testimony:

"[Defense counsel]: Now, what was it that you were taking?

"[Bryant]: To start, I smoked weed, I took Xanax. In the 

evening time, I have a prescription for Remeron, Prednisone, 

and Ambien that I would take. 

"....

"[Defense counsel]: And just tell us what all you did the rest 

of the day. What all drugs did you do that day?

"[Bryant]: I mean, I can't exactly be sure what all drugs I took 

that day. I had a very deep addiction and would take anything 

that I could get my hands on.

"....
CR-21-0393

38

"[Defense counsel]: That is your testimony that all of the 

things that you just testified under oath that you said and did, 

heard other folks did, you were high off of drugs when that 

happened; is that correct?

"[Bryant]: Yes, sir."

(Trial R. 900-902.) 

Counsel's cross-examination of Bryant was both thorough and 

extensive. Clearly, counsel chose to focus on the fact that Bryant had 

taken many drugs on that day and, thus, that her testimony was suspect. 

"'"[T]he scope of cross-examination is grounded in trial tactics and 

strategy, and will rarely constitute ineffective assistance of counsel."'" 

Stanley v. State, 335 So. 3d 1, 37 (Ala. Crim. App. 2020), quoting Bonner 

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

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

For the above reasons, this claim was properly summarily 

dismissed, and Young is due no relief.

d.

Young next argues that his trial counsel was ineffective for failing 

to adequately cross-examine Shaun Settles because, he says, Settles was 
CR-21-0393

39

in possession of critical evidence, a note/letter, indicating that Young was 

being used as a scapegoat.5

Settles testified that he was in jail on unrelated charges at the same 

time as Capote and Hubbard, that Hubbard was his cell mate, and that 

Capote was in a nearby cell. He said that Capote and Hubbard would 

pass notes between the two cells and he would hand the notes between 

the two men. Settles said that he kept the notes. In one note, Capote 

wrote: "Listen gee I killed that nigga but f___ [Young] I'll ask for 

immunity if I tell him who killed [Freeman] and tell him [Young] did it." 

(C. 36.) Through the contact with Capote and Hubbard and the notes, 

Settles led police to the location of the SKS rifle that had been used to 

kill Freeman. 

In finding that this claim failed to state a material issue of fact or 

law that would entitle Young to relief, the postconviction court stated:

"While the letter certainly implicates Capote as one of 

Freeman's killers, it does not exonerate Young. Indeed, the 

State traveled under an accomplice liability theory for Young, 

as it was Capote's SKS bullets that killed Freeman. Just 

because Capote admits to killing Freeman in this letter does 

not prove that Young was not also there shooting right 

alongside Capote.

5In Young's postconviction petition, this witness's name is spelled 

"Shaun"; in the trial transcript his name is spelled "Shawn." 
CR-21-0393

40

"...Young claims that if counsel had introduced this 

evidence, the jury would have had proof that members of the 

conspiracy sought to make Young a scapegoat. On its face, 

the letter does not state that Capote would 'frame' Young, nor 

is there any indication that Capote would have needed to lie 

to place Young at the scene. Young fails to plead, then, how 

counsel's failure to introduce the letter, and then cross Settles 

on it was not part of a reasonable trial strategy. On direct, 

Settles gave limited testimony, briefly explaining that, from 

the letters between Capote and Hubbard, he learned the 

location of the SKS rifle Capote used to shoot Freeman. This 

information was then used by law enforcement to retrieve the 

rifle. This testimony is exceedingly narrow, and if anything, 

only further implicated Capote, not Young. If counsel had 

introduced the letter and crossed Settles on its contents, 

counsel could have opened-up Young to damaging testimony 

from Settles on cross and on re-direct. Thus, Young fails to 

plead facts that, if true, would establish either Strickland [v. 

Washington, 466 U.S. 668 (1984),] prong."

(C. 680-82.) 

As the postconviction court stated, the note did not establish 

Young's innocence. The State maintained throughout the proceedings 

that two shooters were involved and that the fatal shot was fired from 

the SKS rifle that had been fired by Capote. It is also clear that counsel 

was given a copy of this note during discovery. Clearly, counsel made a 

strategic decision to not present the note. Accordingly, there was no 

material issue of fact or law that would entitle Young to relief under 
CR-21-0393

41

Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus, summary dismissal

of this claim was proper. 

e.

Young next argues that his trial counsel was ineffective in its crossexamination of Investigator Wes Holland because, he says, counsel failed

to adequately question him about the unreliability of the surveillance 

video of the parking lot where the shooting occurred.

The postconviction court stated the following:

"Young fails to plead how a reasonable attorney in counsel's 

position would have continued to question Investigator [Wes] 

Holland about the video's quality despite the already 

favorable testimony he gave on re-cross. Indeed, on re-cross, 

Investigator Holland testified that he could not tell if the 

persons in the video were black or white. Thus, counsel 

established the difficulty in making an identification from the 

video. Moreover, Young fails to plead how counsel's failure to 

further question Investigator Holland actually prejudiced 

him. Thus, Young has failed to plead facts that, if true, would 

establish either Strickland [v. Washington, 466 U.S. 668 

(1984),] prong."

(C. 682-83.) 

The trial record shows that the surveillance videotape was played 

to the jury. On re-cross, Holland was asked about whether he could tell 

from the tape if the driver of the vehicle was black or white. Holland

indicated that he could not. (Trial R. 704.) Clearly, the jury could make 
CR-21-0393

42

its own assessment concerning the reliability of the video as it viewed 

that video. There was no material issue of fact or law that would entitle 

Young to relief under Strickland. See Rule 32.7(d), Ala. R. Crim. P. Thus, 

summary dismissal was proper, and Young is due no relief on this claim.

3.

Young next argues that counsel was ineffective for failing to present 

an adequate closing argument. Specifically, he asserts that in closing 

argument trial counsel conceded that Young was guilty of capital murder. 

The postconviction court found that this issue was not supported by 

the record and that Young thus was not entitled to relief. (C. 683.) 

Indeed, the trial record shows that during closing argument defense 

counsel stated that based on the burden of proof in a civil case the 

evidence might point to Young's guilt but that this was a criminal case 

and the burden of proof required proof beyond a reasonable doubt. (Trial 

R. 1274.) Counsel did not concede Young's guilt in closing argument; 

therefore, this claim is not supported by the record. Accordingly, there

was no material issue of fact or law that would entitle Young to relief. 

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

Moreover, 
CR-21-0393

43

"'[c]losing argument is an area where trial strategy is most 

evident.' Flemming v. State, 949 S.W.2d 876, 881 (Tex. Ct. 

App. 1997). '[S]pecial deference is due to an attorney's closing 

argument strategy because it is 'an inherently subjective 

task."' Johnson v. State, 612 So. 2d 1288, 1299 (Ala. Crim. 

App. 1992) (quoting Thompson v. Wainwright, 787 F.2d 1447, 

1455 (11th Cir. 1986)."

Clark v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015). For these 

reasons, Young is due no relief on this claim.

C.

Young next argues that his trial counsel was ineffective for not 

challenging evidence presented by the State indicating that Young was a 

high-ranking gang member involved in the narcotics trade.

The postconviction court stated: "The Court of Criminal Appeals 

addressed this issue on direct appeal and found 'no error, much less plain 

error, in the circuit court's admission of evidence of Young's gang 

affiliation.' Counsel cannot be ineffective for failing to raise a meritless 

objection." (C. 684.) 

In this Court's opinion on direct appeal, we held that evidence of 

Young's gang affiliation and position in the gang was admissible and 

relevant to the circumstances surrounding the murder. We stated:

"The evidence at trial showed that Young was a member 

of the Almighty Imperial Gangsters. Although Young was a 
CR-21-0393

44

top-ranking member of the gang, Hubbard was the leader of 

the gang and was above Young in the hierarchy. After 

Hubbard's house was burglarized, Hubbard had a 'business 

discussion' with the members and told them that he wanted 

to find and kill the person who broke into his house. (R. 744.) 

He asked the gang for their help. This meeting, which Young 

attended, took place in Hubbard's bedroom, where, according 

to testimony, Hubbard generally conducted gang-related 

business. When Hammonds told Hubbard that Freeman 

might be the person who broke into Hubbard's house, 

Hubbard and the other members of the gang planned to kill 

Freeman. This evidence of Young's gang affiliation -- and 

especially his rank in the gang below Hubbard -- was relevant 

to show Young's motive for participating in killing Freeman 

at Hubbard's behest."

Young, ___ So. 3d at ___. Therefore, the underlying claim that supported 

Young's claim of ineffective assistance of counsel had no merit.

"'[B]ecause the underlying claims have no merit, the 

fact that [the petitioner's] lawyer did not raise those claims 

cannot have resulted in any prejudice to [the petitioner].' 

Magwood v. State, 689 So. 2d 959, 974 (Ala. Crim. App. 1996). 

See also Commonwealth v. Walker, 613 Pa. 601, 614, 36 A.3d 

1, 9 (2011) ('Since all of appellant's underlying claims of trial 

counsel's ineffectiveness fail, his claims of appellate counsel's 

ineffectiveness are necessarily defeated as well....'); Jackson 

v. State, 133 So. 3d 420, 453 (Ala. Crim. App. 2009). Many 

other states have applied this same standard. See Walker v. 

State, 863 So. 2d 1, 11 (Miss. 2003) ('Because we have held 

that the underlying claims are without merit, Walker cannot 

show the requisite deficient performance and resulting 

prejudice necessary to establish the various claims of 

ineffective assistance of counsel.'); People v. Pitsonbarger, 205 

Ill. 2d 444, 466, 275 Ill. Dec. 838, 854, 793 N.E.2d 609, 625 

(2002) ('Claims of ineffective assistance of counsel at trial and 

on direct appeal are evaluated under the standard set forth in 
CR-21-0393

45

Strickland [v. Washington,] 466 U.S. at 687, 104 S.Ct. at 2064, 

80 L.Ed.2d at 693 [(1984)], which requires the defendant to 

demonstrate both deficient performance by counsel and 

resulting prejudice. Accordingly, if the underlying claim has 

no merit, no prejudice resulted, and petitioner's claims of 

ineffective assistance of counsel at trial and on direct appeal 

must fail.')."

White v. State, 343 So. 3d 1150, 1174 (Ala. Crim. App. 2019). For these 

reasons, Young is due no relief on this claim.

D.

Young next argues that his trial counsel was ineffective for failing 

to object to the admission of "unreliable videotape evidence without a 

proper foundation." (Young's brief, p. 80.) Specifically, Young pleaded

that counsel should have objected when the videotape made by 

surveillance cameras of the parking lot where the shooting occurred was 

introduced and admitted into evidence. 

The postconviction court found that, on direct appeal, this Court 

addressed the underlying issue and found no error, much less plain error; 

therefore, there was no material issue or fact or law that would entitle 

Young to relief. (C. 690.) In this Court's opinion on direct appeal, we 

held that the videotape was admissible under the "silent witness theory"
CR-21-0393

46

because the State had satisfied the requirements of Voudrie v. State, 387 

So. 2d 248 (Ala. Crim. App. 1980). See Young, ___ So. 3d at ___.6

The trial record shows that the State called Mary Sumerel, the 

property manager at Spring Creek Apartments, as a witness to establish

the foundation for the admission of the videotape. Sumerel testified that 

the apartment complex had video surveillance cameras and that the 

cameras were working at the time of the shootings. (Trial R. 530.) She 

testified as to when those video cameras were installed, that the video 

was stored on a flash drive, and that the video of the shooting had not 

been altered in any way while it was in her possession. (Trial R. 534.) 

Sumerel's testimony was sufficient to establish a proper foundation for 

the admission of the videotape. This Court in Capote specifically found 

that the same video was admissible against a claim that there had not

been a proper foundation for its admittance.7 See Capote v. State, 323 

So. 3d at 131. Also, the poor quality of the video did not affect its 

6See Ex parte Fuller, 620 So. 2d 675 (Ala. 1993), recognizing the 

modified Voudrie test. 

7Sumerel's testimony in Capote's trial was very similar to her 

testimony at Young's trial. 
CR-21-0393

47

admissibility but rather its weight. "The quality of the tape was a factor 

for the jury's consideration in determining the weight to be given the 

evidence, rather than a factor concerning its admissibility." Davis v. 

State, 529 So. 2d 1070, 1072 (Ala. Crim. App. 1988). 

Because the underlying claim had no merit, summary dismissal 

was proper. See White, supra. For these reasons, Young is due no relief

on this claim.

E.

Young next argues that his trial counsel was ineffective for failing 

to adequately challenge the admission of evidence of Young's DNA that 

had been discovered on a soda can in the white pickup involved in the 

shooting. In summarily dismissing this claim, the postconviction court 

stated:

"Young claims that trial counsel should have objected to the 

DNA evidence on relevance grounds. However, the presence 

of Young's DNA inside the vehicle driven by the shooters was 

clearly relevant and admissible because it tended to make it 

more likely that Young was present at the murder scene, 

creating a definite link between Young and the vehicle used 

to commit the crime. While Young makes much of the fact 

that the DNA evidence cannot pinpoint the time that he was 

present in the truck, that is nearly always the case with DNA 

evidence and it would not have been grounds for error. ...

"....
CR-21-0393

48

"Moreover, Young fails to satisfy the specificity and full 

factual pleading requirements of Rules 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. Young fails to 

specifically plead any arguments, or authority, that trial 

counsel could have relied on to further challenge the 

admissibility of DNA evidence."

(C. 691-93.) 

First, this claim was properly dismissed because Young pleaded no 

grounds upon which the DNA evidence should have been challenged by 

his trial counsel. Young failed to plead the full facts to support this claim. 

See Rule 32.6(b), Ala. R. Crim. P.

Moreover, Angela Fletcher, a forensic biologist with the Alabama 

Department of Forensic Sciences, testified that she conducted DNA tests 

on several items that were discovered in the truck involved in the 

shootings. The DNA on the soda can, she said, was consistent with 

Young's DNA. Also, DNA from a cigarette butt was consistent with 

Capote's DNA. On cross-examination, counsel questioned Fletcher about 

transferring DNA by coughing or sneezing, made the point that there was 

no way to determine how long the DNA had been present, and indicated 

that the soda can that contained the DNA could have been moved from 

another location and placed in the truck. (Trial R. 1075.) The record 

shows that counsel did question the DNA expert. Thus, this claim also 
CR-21-0393

49

presented no issue of fact or law that would entitle Young to relief. Thus, 

Young is due no relief on this claim.

F.

Young next argues that his trial counsel was ineffective for failing 

to object to various items of evidence that, he says, were inadmissible. 

"'[E]ffectiveness of counsel does not lend itself to 

measurement by picking through the transcript and counting 

the places where objections might be made. Effectiveness of 

counsel is not measured by whether counsel objected to every 

question and moved to strike every answer.' Brooks v. State, 

456 So. 2d 1142, 1145 (Ala. Crim. App. 1984). As we recently 

stated in Hooks v. State, 21 So. 3d 772 (Ala. Crim. App. 2008):

"'"'Decisions concerning whether or when to make 

objections at trial are left to the judgment of 

counsel.' State v. Suarez, 867 S.W.2d 583, 587 (Mo.

App. 1993). 'Ineffective assistance of counsel is not 

to be determined by a post-trial academic 

determination that counsel could have 

successfully objected to evidence in a given 

number of instances.' Id. 'The failure to object to 

objectionable evidence does not establish 

ineffective assistance of counsel unless the 

evidence resulted in a substantial deprivation of 

the accused['s] right to a fair trial.' Id. 'Counsel's 

failure to object to particular evidence can 

constitute mere "trial error" not arising to 

constitutional proportions and thus not cognizable 

in a post-conviction motion.' Id."'

"Quoting State v. Radley, 904 S.W.2d 520, 525 (Mo. App.

1995)."
CR-21-0393

50

Bush v. State, 92 So. 3d 121, 161 (Ala. Crim. App. 2009).

1.

First, Young argues that his trial counsel failed to object to a 

photograph that was admitted in the guilt phase that showed the victim 

and his girlfriend because, he says, the photograph constituted

inadmissible victim-impact evidence. 

In finding that Young failed to plead sufficient facts to support this

claim, the postconviction court stated:

"Young does not explain how this picture was improper victim 

impact evidence. Young fails to plead why no reasonable 

attorney would have failed to object to this picture. Moreover, 

Young completely fails to plead how counsel's actions 

prejudiced him. Indeed, Young makes a conclusory allegation 

that counsel's actions were deficient, but does not explain 

how, had counsel objected, the outcome of his trial would have 

likely been different. Thus, Young fails to plead facts that, if 

true, would establish either Strickland [v. Washington, 466 

U.S. 668 (1984),] prong."

(C. 694.) 

Moreover, "[v]ictim-impact statements typically 'describe the effect 

of the crime on the victim and his family.'" Turner v. State, 924 So. 2d 

737, 770 (Ala. Crim. App. 2002). 

"As for Brooks's claim that his counsel were ineffective for 

failing to object to the picture of Brett in a karate uniform and 

a picture of Forest and Brett together, as explained above, 'it 

is generally agreed that the photograph of the victim of the 
CR-21-0393

51

homicide, taken before the alleged murder, is admissible for 

the purpose of identification.' Russell [v. State,] 272 So. 3d 

[1134] 1165 [(Ala. Crim. App. 2017)] (citations and quotations 

omitted). Thus, Brooks's counsel were not ineffective for 

failing to object to the admission of those photographs as 

victim-impact evidence."

Brooks v. State, 340 So. 3d 410, 465 (Ala. Crim. App. 2020). 

"[A]t least one court has noted the rarity of finding a counsel's 

performance ineffective for failing to object to photographs:

"'A competent lawyer familiar with the most 

recent pronouncements of this Court on the subject 

and familiar with the trial record would not 

perceive that admission of the photographs was an 

obvious basis for reversal of the appeal. No case is 

cited or found where trial counsel was held 

ineffective for failing to object to such photographs 

or holding that appellate counsel was ineffective 

for not asserting error in the admission of such 

photographs."'

Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting 

Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). There was no material issue 

or fact or law that would entitle Young to relief. See Rule 32.7(d), Ala. R. 

Crim. P. Accordingly, summary dismissal was proper, and Young is due 

no relief on this claim.

2.

Young next argues that his trial counsel was ineffective for failing 

to object to a hearsay statement made by a police officer that Young was 
CR-21-0393

52

"possibly armed with a rifle" when he was arrested. (Young's brief at p. 

83.)

In summarily dismissing this claim, the postconviction court stated:

"This statement was not hearsay as it was not an out of court 

statement offered to prove the truth of the matter asserted. 

This statement was not offered to prove that Young was 

armed with a rifle, but rather, was offered to inform the jury 

of the officer's mindset when in pursuit of Young. ... Even if 

this statement was hearsay, Young fails to plead that it was 

not otherwise admissible. Young fails to plead how, if counsel 

had objected, there is a reasonable probability the entire 

outcome of his case would have been different. Thus, Young 

fails to plead facts that, if true, would establish either 

Strickland [v. Washington, 466 U.S. 668 (1984)] prong."

(C. 694-95.) 

The trial record shows that Officer Derrick Thomas of the Loretto 

Police Department testified that on March 4, 2016, he was in pursuit of 

Young. The following occurred:

"[Prosecutor]: Can you tell the ladies and gentlemen of the 

jury what information you had about the pursuit or the 

subject involved in the pursuit at that point?

"[Officer Thomas]: We were monitoring the pursuit coming 

into Lauderdale County. Our radios allow us to monitor the 

Lauderdale County Sheriff's Department. From that, we 

learned that it was a silver Ford car. When it was apparent 

that it was coming into Lawrence County, their dispatch 

contacted ours and they relayed to us that Mr. Young was 

wanted for a homicide in Tuscumbia and was possibly armed 

with a rifle."
CR-21-0393

53

(Trial R. 960-61.)

Clearly, the above evidence was introduced to show the 

circumstances surrounding Young's arrest and was not hearsay. 

"'"Hearsay" is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.' Rule 

801(c), Ala. R. Evid. However, '"[a] statement offered for some 

other purpose other than to prove the truth of its factual 

assertion is not hearsay."' Montgomery v. State, 781 So. 2d 

1007, 1019 (Ala. Crim. App. 2000) (quoting Thomas v. State, 

408 So. 2d 562, 564 (Ala. Crim. App. 1981))."

Capote v. State, 323 So. 3d 104, 127 (Ala. Crim. App. 2020).

Accordingly, any objection that this evidence was hearsay would 

have been overruled. "Because the substantive claim underlying the 

claim of ineffective assistance of counsel has no merit, counsel could not 

be ineffective for failing to raise this issue." Lee v. State, 44 So. 3d 1145, 

1173 (Ala. Crim. App. 2009). Summary dismissal was proper, and Young

is due no relief on this claim.

3.

Young next argues that his trial counsel was ineffective for failing 

to object to testimony from Officer Steven Benson concerning the 

apprehension of Young's codefendants, Capote and Hubbard, at a traffic 
CR-21-0393

54

stop. Young's entire argument on this issue in brief consists of the 

following statement: "As Mr. Young also pleaded, counsel also failed to 

object to irrelevant and inadmissible testimony from Steven Benson 

concerning the apprehension of both Capote and Hubbard in a traffic 

stop." (Young's brief at pp. 83-84.)

In finding that Young failed to plead sufficient facts to support this 

claim, the postconviction court stated:

"Young makes a conclusory claim that this testimony was not 

relevant or admissible, but he fails to explain how. Young 

fails to plead how this was not part of a reasonable trial 

strategy. The testimony presented no harm to Young as it did 

not implicate him in any illegal activity. Rather, the 

testimony distanced Young from Capote and Hubbard as 

Young was not with the pair when they were arrested. 

Moreover, Young completely fails to explain how he was 

actually prejudiced."

(C. 696.)

Young failed to plead why the testimony concerning the arrest of 

two of his codefendants was irrelevant and inadmissible. Nor did he 

plead how he was prejudiced by the officer's testimony. Accordingly, 

Young failed to meet his burden of pleading the full facts in regard to this 

claim and summary dismissal was proper. Rule 32.6(b), Ala. R. Crim. P. 

Accordingly, Young is due no relief on this claim.
CR-21-0393

55

4.

Young further argues that his trial counsel was ineffective for 

failing to object to the introduction of 34 autopsy photographs of the 

victim because, he says, the photographs were prejudicial. 

The postconviction court found that this claim was without merit 

because this Court, on direct appeal, addressed the admissibility of the 

autopsy photographs and held that the photographs were admissible. (C. 

697.) On direct appeal, we stated:

"Although unpleasant to view, the autopsy photographs were 

relevant and admissible to show the location and the extent 

of the wounds to Freeman's body. The State had the burden 

of proving beyond a reasonable doubt that Young intended to 

kill Freeman 'by or through the use of a deadly weapon while 

the victim is in a vehicle.' § 13A-5-40(17), Ala. Code 1975. 

Among other things, the photographs showed the number and 

the location of the gunshot wounds to Freeman's body. Thus, 

the photographs were relevant to show Young's intent that 

Freeman be killed and to show that Freeman was seated in 

his vehicle when he was shot. We also note that the 

photographs of the injured vital organs showed 'only so much 

of the surrounding dissected body area' as was 'reasonably 

necessary to furnish visual aid to the jury.' See McKee v. 

State, 33 Ala. App. 171, 177, 31 So. 2d 656, 661 (1947). For 

these reasons, we find no error, much less plain error, in the 

admission of the autopsy photographs."

Young, ___ So. 3d at ___.
CR-21-0393

56

When addressing the admission of the same photographs in the 

trial of one of Young's codefendants, this Court further stated:

"This Court has thoroughly reviewed all the autopsy 

photographs. As Capote contends, photographs that depict 

distortions of the subject matter, such as massive mutilation 

or extreme magnification, are objectionable. See Malone v. 

State, 536 So. 2d 123 (Ala. Crim. App. 1988). Nonetheless, 

photographs that accurately depict the nature of a victim's 

wounds are admissible even if they are gruesome or 

cumulative. Acklin v. State, 790 So. 2d 975 (Ala. Crim. App. 

2000). The autopsy photographs were relevant and 

admissible to show the extent of the wounds to Freeman's 

body. Each photograph was identified and explained to the 

jury. Although they are certainly unpleasant to view, they are 

not unduly gruesome, and this Court concludes that their 

prejudicial effect did not substantially outweigh their 

probative value. Therefore, this Court finds no error, much 

less plain error, in the admission of the autopsy photographs. 

Accordingly, Capote is not entitled to any relief on this claim."

Capote v. State, 323 So. 3d at 126-27.

Counsel cannot be ineffective for failing to raise an issue that has 

no merit. Lee v. State, 44 So. 3d at 1173. 

Moreover, 

"At least one court has noted the rarity of finding a counsel's 

performance ineffective for failing to object to photographs:

"'A competent lawyer familiar with the most 

recent pronouncements of this Court on the subject 

and familiar with the trial record would not 

perceive that admission of the photographs was an 

obvious basis for reversal of the appeal. No case is 
CR-21-0393

57

cited or found where trial counsel was held 

ineffective for failing to object to such photographs 

or holding that appellate counsel was ineffective 

for not asserting error in the admission of such 

photographs.'"

Thompson v. State, 310 So. 3d 850, 874 (Ala. Crim. App. 2018), quoting, 

in part Hall v. State, 16 S.W.3d 582, 587 (Mo. 2000). For these reasons, 

Young was due no relief on this claim and summary dismissal was 

proper. 

G.

Young next argues that his trial counsel was ineffective for failing 

to conduct any meaningful voir dire relevant to the unique issues 

presented by a death-penalty case. 

In finding that Young failed to plead the full facts concerning this 

claim, the postconviction court stated:

"Young claims that counsel asked 'basic' questions, but he 

fails to plead what questions counsel asked that were 

problematic. Young likewise fails to specifically plead what 

questions counsel should have asked. Finally, Young 

completely fails to plead how counsel's alleged failure actually 

prejudiced him, considering the State's own questions 

concerning the death penalty and the juror's answers. Thus, 

Young fails to plead facts that, if true, would establish either 

Strickland [v. Washington, 466 U.S. 668 (1984),] prong."

(C. 697-98.)
CR-21-0393

58

As the postconviction court stated, Young failed to plead what 

questions counsel should have asked during voir dire that would have 

constituted more than "basic" questions. Also, Young failed to plead how 

he was prejudiced by counsel's actions during voir dire. Therefore, the 

full facts concerning this claim were not pleaded. Rule 32.6(b), Ala. R. 

Crim. P.

Moreover, the trial record shows that the prospective jurors were 

death-qualified by the circuit court. In fact, this claim was raised on 

direct appeal and this Court upheld the death-qualifications questions 

posed to the prospective jurors. Young, ___ So. 3d at ___. In regard to 

voir dire examination, this Court has stated:

"'Generally, "[a]n attorney's actions during voir 

dire are considered to be matters of trial strategy,"

which "cannot be the basis" of an ineffective 

assistance claim "unless counsel's decision is ... so 

ill chosen that it permeates the entire trial with 

obvious unfairness."'

"Neill v. Gibson, 263 F.3d 1184, 1193 (10th Cir.2001) (quoting 

Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997)). 

'Counsel, like the trial court, is granted "particular deference"

when conducting voir dire.' Keith v. Mitchell, 455 F.3d 662, 

676 (6th Cir. 2006)."
CR-21-0393

59

Washington v. State, 95 So. 3d 26, 64 (Ala. Crim. App. 2012). For these 

reasons, summary dismissal of this claim was proper, and Young is due 

no relief on this claim. 

H.

Young argues that two of his trial attorneys suffered from a conflict 

of interest because, he says, his attorney Ben Gardner represented Shaun 

Settles's girlfriend, Robyn Green, on an unrelated charge and another of 

his attorneys, Nathan Johnson, had previously represented Settles.

Young also pleaded that his attorneys shared information with 

Hubbard's investigator. 

This portion of Young's petition is confusing and sparse. Young 

pleaded that Shaun Settles testified in exchange for a lenient sentence in 

an unrelated case and for a more lenient sentence for Green in that same 

unrelated case. He further pleaded that Gardner had represented 

Settles's girlfriend and that at one point Johnson had represented 

Settles. Green did not testify at Young's trial.

In summarily dismissing this claim, the postconviction court stated:

"Young fails to satisfy the specificity and full factual 

pleading requirements of Rule 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. To establish a conflictof-interest claim, a petition 'must establish that an actual 
CR-21-0393

60

conflict of interest adversely affected his lawyer's 

performance .... Thus, the mere possibility of a conflict is not 

enough to upset a conviction; the [petitioner] must identify an 

actual conflict that impeded his lawyer's representation.' ... 

Young has failed to do this. It is not enough to establish an 

actual conflict by simply stating that counsel also represented 

someone else who was tangentially connected to this case. 

Young likewise fails to plead how this 'conflict' impeded his 

representation, especially considering counsel's vigorous 

cross-examination of Settles. As for Young's claim that 

counsel shared information with Hubbard's investigator, 

Young fails to plead what information was shared and how 

such action, if true, prejudiced him. Indeed, Young does not 

plead how the information given to the investigator was used 

against him at trial and impacted its outcome. Rather, Young 

makes only a conclusory allegation that counsel erred. Thus, 

Young's claim as pleaded is insufficient to overcome 

Strickland's strong presumption of effective assistance."

(C. 699.) 

Young failed to plead the full circumstances surrounding his 

attorneys' prior representations. Indeed, no facts concerning those

representations were pleaded in Young's petition. Nor did Young plead 

what counsel supposedly shared with Hubbard's investigator. 

"Conclusions unsupported by specific facts will not satisfy the 

requirements of Rule 32.3 and Rule 32.6(b). The full factual basis must 

be included in the petition itself." Hyde v. State, 950 So. 2d at 356. 

Moreover, the trial record shows that before Settles testified, 

Young's counsel objected and argued that Settles's testimony should be 
CR-21-0393

61

excluded because the State attorneys who signed the agreement with 

Settles would be called to testify. The trial record further shows that 

neither Gardner nor Johnson represented Settles when he signed the 

plea agreement. The plea agreement that was entered into evidence 

shows that at the time that the plea agreement was signed, Settles's 

attorneys were Jeff Austin and Pride Tompkins. (Trial C. 43-49.) 

For these reasons, summary dismissal of this claim was proper. 

Accordingly, Young is due no relief on this claim.

I.

Young next argues that his trial counsel was ineffective for failing 

to object to the State's lack of corroboration of his accomplices' testimony. 

The postconviction court noted that this Court, on direct appeal,

addressed the underlying claim and then found that, even if Young had 

objected, there was sufficient evidence to corroborate the testimony of his 

accomplices. On direct appeal, this Court held that the testimony of 

Hammonds and Bates was corroborated. We stated:

"Even without Hammonds's and Bates's testimony of 

Young's involvement in the murder of Freeman and the 

shooting of Blythe, the State presented sufficient evidence 

tending to connect Young with those offenses.
CR-21-0393

62

"The State presented evidence that two days before 

Freeman was murdered Hubbard reported a burglary at his 

house on Midland Avenue in Muscle Shoals. The responding 

officer said that Hubbard was angry about the burglary, and 

Young's girlfriend, Meagan, testified that she and others had 

to calm down Hubbard. (R. 896.) Meagan testified that two 

days later she was at Hubbard's house when Young and 

several others went into Hubbard's bedroom. When Young 

came out of the bedroom 10-15 minutes later, he went with 

Meagan, Capote, and Capote's girlfriend to the Gander 

Mountain store in Florence. Young asked Meagan to buy some 

ammunition and he told her what kind of ammunition to buy. 

Meagan bought a box of 7.62x39mm ammunition from Gander 

Mountain at 9:01 p.m. on March 1. After Meagan bought the 

ammunition, Young drove everyone back to Hubbard's house.

"Surveillance footage from the Spring Creek 

Apartments in Tuscumbia shows a white Dodge four-door 

pickup truck arriving at the apartment complex around 10:47 

p.m. on March 1. A blue Mustang arrived about 10-11 minutes 

later. The time stamps from the surveillance footage showing 

Freeman's blue Mustang arriving at the Spring Creek 

Apartments corresponded with the time stamps from 

Burgner's Facebook Messenger exchange with Freeman in 

which Freeman told her that he was 'getting my cash r[ight] 

n[ow]' that 'Vonte' owed him.

"[Jodi] Bohn, who lived at the Spring Creek Apartments, 

testified that she looked out of her apartment window and saw 

two men get out of a white Dodge pickup truck. The man who 

got out of the driver's side was 'big and heavy.' The record 

shows that Young is 6 feet 4 inches tall and weighed 270 

pounds.

"Law-enforcement officers found several shell casings at 

the scene. The State produced evidence that the shell casings 

found at the scene were 7.62x39mm -- the same type of 
CR-21-0393

63

ammunition Young directed Meagan to buy from Gander 

Mountain two hours before Freeman was murdered.

"Shortly after midnight, [Dale] Springer [a resident of 

the Chateau Orleans apartments] saw a white Dodge pickup 

truck park at the Chateau Orleans apartment complex in 

Muscle Shoals near Hubbard's house. He saw a silver or gold 

four-door car pull up. The driver of the pickup truck talked 

with the driver of the car before the car sped away. The two 

men who had gotten out of the pickup truck walked away and 

left the truck parked at the Chateau Orleans apartment 

complex.

"Meagan testified that when she woke up at Hubbard's 

house on March 2, Young 'thought it was best' that they leave 

Hubbard's house that day. Meagan testified that Young had 

in the past driven a white Dodge pickup truck. DNA from a 

grape soda can found in the white Dodge pickup truck parked 

at the Chateau Orleans apartment complex matched DNA 

from a cheek swab taken from Young.

"Three days after Freeman was murdered lawenforcement officers were watching Hubbard's house when 

they saw Young leave Hubbard's house driving a silver car. 

When law-enforcement officers tried to stop Young, Young led 

several law-enforcement agencies on a chase through 

northern Alabama and into Tennessee.

"Based on information Settles provided them, lawenforcement officers later found an SKS rifle matching the 

description of one that Hubbard owned. Forensic scientists 

tested the rifle and found that the 7.62x39mm-shell casings 

found at the scene, as well as the projectiles recovered from 

Freeman's body during the autopsy, were fired from the SKS 

rifle.

"The State's evidence, independent of Bates's and 

Hammonds's testimony, tended to connect Young to the 
CR-21-0393

64

commission of the offenses for which the jury convicted him. 

Thus, the State produced sufficient evidence corroborating 

Bates's and Hammonds's accomplice testimony."

Young, ___ So. 3d at ___.

 Because this Court addressed the underlying claim and concluded

that there was sufficient evidence to corroborate Young's accomplices'

testimony, there was no material issue of fact or law that would entitle 

Young to relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, summary 

dismissal was proper. For these reasons, Young is due no relief on this 

claim.

J.

Young next argues that his counsel was ineffective for failing to 

object to his conviction for shooting into a vehicle when that offense was 

part of the capital offense of shooting into an occupied vehicle. The 

postconviction court found that this claim was without merit based on 

the record. (C. 703.) 

The trial record shows that Young was convicted of murder made 

capital because it was committed by shooting into an occupied vehicle, of 

assault in the first degree, and shooting or discharging-a-firearm into an 

occupied vehicle. (Trial C. 344.) However, before sentencing, the State 
CR-21-0393

65

moved that the discharging a firearm conviction be set aside because, it 

argued, that crime was encompassed in the capital-murder conviction. 

(Trial C. 346-47.) The circuit court granted the State's motion. (Trial 

C. 348.) Thus, Young could not establish any prejudice in regard to this 

claim because the conviction was vacated. This issue presented no 

material issue of fact or law that would entitle Young to relief. See Rule 

32.7(d), Ala. R. Crim. P. Therefore, Young is due no relief on this claim. 

K.

Young next argues that his trial counsel was ineffective for failing 

to pursue remedies when a juror indicated his fear of participating as a 

juror on Young's case. The pleadings on this claim consist of one 

paragraph. (C. 55.)

The postconviction court made the following findings:

"Though trial counsel moved for a mistrial, Young claims that 

if trial counsel had made an effort to gather more information 

from juror B.M., counsel could have presented a more 

'coherent basis' for the motion being granted. 

"....

"Young fails to plead what questions counsel should 

have asked, what answers juror B.M. would have given, and 

how those answers would have supported a motion for 

mistrial. ... Without the above information, Young cannot 
CR-21-0393

66

show that a mistrial was necessary to prevent 'manifest 

injustice.' 

"... Regardless of counsel's strategy, however, Young 

fails to plead how such decision actually prejudiced him. Thus, 

Young fails to plead facts that, if true, would overcome 

Strickland's strong presumptions. Such 'bare claims' are 

insufficient to warrant further proceedings. Rule 32.6(b), Ala. 

R. Crim. P."

(C. 703-706.) 

The trial record shows that on the morning of the last day of trial, 

a matter was brought to the circuit court's attention. The following 

occurred:

"THE COURT: Let the record reflect that Juror [B.M.] and 

Bailiff Ernest Bechard, both just came in the courtroom.

"It is my understanding -- the Court's understanding that you 

noticed some suspicious activity in your neighborhood last 

night which made you uneasy and concerned you that there 

may be some relation to this case. You appropriately 

contacted the sheriff's department, which is absolutely what 

you should have done. And it is also the Court's 

understanding that the sheriff's office took your call seriously 

and investigated and dealt with your concern and your call. 

And at this time, I have asked the Sheriff to come in here and 

explain to you what was done in response to the conduct.

"....

"[Sheriff Williamson]: I didn't want to talk to you last night 

because I didn't want to be unethical or get in the way of these 

folks that have worked hard on this case. So what I wanted 

to talk to you about was, we checked this guy out, and you did 
CR-21-0393

67

good by getting us a tag number. And what we think that --

we don't think it has anything to do with this case. We think 

that it has to do with the break-ins that are going on out there 

right now. So I just wanted you to feel at ease so that you 

could do your job today."

(Trial R. 1349-51.) The circuit court then asked juror B.M. if the sheriff's 

comments had put his mind at ease. B.M. indicated that they did. (Trial 

R. 1351-52.) There is no indication that this juror was in fear because 

he was serving on Young's jury. This claim was not supported by the 

record and was properly summarily dismissed. See Rule 32.7(d), Ala. R. 

Crim. P. Accordingly, Young is due no relief on this claim.

L.

Young next argues that his trial counsel was ineffective for failing 

to pursue "adequate remedies" when a juror slept through portions of the 

trial. The sparse pleadings on this claim consist of one paragraph. (C. 

55.)

In summarily dismissing this claim, the postconviction court made 

the following findings:

"Young fails to satisfy the specificity and full factual 

pleading requirements of Rules 32.3 and 32.6(b) of the 

Alabama Rules of Criminal Procedure. Young fails to plead 

why remedial measures were needed. Moreover, Young fails 

to plead what remedial measures counsel should have taken 

and on what grounds those requested remedial measures 
CR-21-0393

68

would have been granted. Furthermore, Young fails to plead 

why a mistrial was necessary to prevent 'manifest injustice.' 

... Young's claim amounts to 'counsel should have done 

something' -- but Young does not plead what counsel should 

have done. Finally, Young fails to plead how there is a 

reasonable possibility that, but-for counsel's failure, the 

outcome of his trial would have been different. Such 'bare 

claims' are insufficient to warrant further proceedings. Rule 

32.6(b), Ala. R. Crim. P."

(C. 707.)

The record of Young's trial shows that the following occurred:

"[Defense counsel]: For the record, there's been a juror this 

morning, he's the gentlemen to your right on the front row. 

His eyes have been closed more than open. I wanted to note 

that for the record.

"THE COURT: Well, I just want to know, would you like to 

take any action or make any motion?

"[Defense counsel]: Not at this time, but after the break after 

lunch, we may be doing so."

(Trial R. 1050-51.) 

First, Young pleaded that trial counsel should have moved for 

"remedial action." However, he failed to plead what he considered 

"remedial action." Nor did Young plead the identity of this juror. The 

full facts were not pleaded regarding this claim; thus, summary dismissal 

was proper. Rule 32.6(b), Ala. R. Crim. P.
CR-21-0393

69

Moreover, at least one court has held that not moving to replace a 

sleeping juror may be considered a sound strategic decision. The Utah 

Court of Appeals in State v. Marquina, 437 P. 3d 628, 638 (Utah App. 

2018), stated:

"[W]e must presume Marquina's defense counsel's conduct fell 

'within the wide range of reasonable professional assistance.'

[State v.] Calvert, 2017 UT App 212, ¶ 22, 407 P.3d 1098 

[(2017)] (quotation simplified). Jury selection and retention 

are 'more art than science,' [State v.] Litherland, 2000 UT 76, 

¶ 21, 12 P.3d 92 [(2000)], and Marquina's counsel was able to 

observe the jurors, including the alternate, over the course of 

three days. Everything from the jurors' demeanors to their 

reactions to testimony may have played a role in counsel's 

decision not to insist on replacing the sleepy juror. He may 

have simply preferred the jury he had. Even if this choice 

seems 'counterintuitive,' counsel may have reasonably 

thought that a sleepy juror would 'overcompensate' and would 

be reluctant to convict. See id. ¶ 22 (quotation simplified). 

Moreover, counsel's choices are viewed objectively; '[t]he first 

prong of the Strickland standard ... requires that a defendant 

rebut the strong presumption that under the circumstances, 

the challenged action might be considered sound trial 

strategy.' Id. ¶ 19 (emphasis added) (quotation simplified). ...

Because Marquina has not demonstrated his counsel was 

objectively deficient, he has not established ineffective 

assistance of counsel."

State v. Marquina, 437 P.3d 628, 638 (Utah App. 2018). For the foregoing 

reasons, this claim was properly summarily dismissed. Therefore, Young 

is due no relief on this claim.
CR-21-0393

70

II.

Young next argues that the State violated Brady v. Maryland, 373 

U.S. 83 (1963), by failing to disclose exculpatory evidence. Specifically, 

he argues that the State failed to disclose the contents of Hammonds's 

cellular-telephone records and failed to disclose the plea agreement that 

it had with Robyn Green, Shaun Settles's girlfriend.

The postconviction court found that this claim was procedurally 

barred because it could have been raised at trial or on appeal but was 

not. Rule 32.2(a)(3) and Rule 32.2(a)(5), Ala. R. Crim. P.8 The court also 

found that this claim was not sufficiently pleaded because Young failed 

to plead what the contents of Hammonds's cellular telephone would show 

and/or whether those contents were favorable to Young's case. He also

failed to plead how the plea agreement with Green was suppressed, given 

that Young also pleaded that one of his attorneys, Ben Gardner, signed 

Green's plea agreement. (C. 757-59.) 

8This Court has frequently held that a Brady claim may be 

procedurally barred in a postconviction proceeding. See Madison v. 

State, 999 So. 2d 561 (Ala. Crim. App. 2006); Hyde v. State, 950 So. 2d 

344 (Ala. Crim. App. 2006); Duncan v. State, 925 So. 2d 245 (Ala. Crim. 

App. 2005); Barbour v. State, 903 So. 2d 858 (Ala. Crim. App. 2004). 
CR-21-0393

71

In the postconviction petition, Young pleaded, in part:

"Hammond's phone and contents were critical to impeaching 

Hammonds at trial. Hammonds likely used this phone to 

coordinate the setup of Freeman and to contact De'Vontae 

Bates to concoct a fake story about their involvement in the 

case."

(C. 100.) (emphasis added). Young's entire pleadings on this claim are

based on speculation. "'Speculation is not sufficient to satisfy a Rule 32 

petitioner's burden of pleading.'" Peraita v. State, [Ms. CR-17-1025, 

August 6, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021), quoting 

Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013). 

Moreover, "to sufficiently plead a Brady [v. Maryland, 373 U.S. 83 

(1963)]; Giglio [v. United States, 405 U.S. 150 (1982)] claim, a petitioner

must allege facts that, if true, would establish that the prosecution 

suppressed evidence that was favorable to the defendant and material."

Reynolds v. State, 236 So. 3d 189, 201 (Ala. Crim. App. 2015). Young did 

not plead how Green's plea agreement was suppressed. As the 

postconviction court stated: "Young affirmatively acknowledges in his 

petition that trial counsel [Gardner] was aware of the plea agreement 

and had actually signed it. Considering these facts, it is clear on the face 

of the petition itself that no Brady suppression occurred." (C. 759.) 
CR-21-0393

72

Thus, summary dismissal of this claim was proper, and Young is due no 

relief on this claim.

III.

Young next argues that he was deprived of his right to a fair trial 

when juror W.F. failed to disclose during voir dire examination that he 

knew Investigator Wes Holland and Officer Stuart Setliff. He further 

argues that counsel was ineffective for failing to object when juror B.M. 

had contact with the Colbert County Sheriff's Office. 

The postconviction court made the following findings on this claim:

"Young claims that W.F. knew Investigator [Wes] 

Holland and Officer [Stuart] Setliff but fails to plead how the 

three knew each other. Young fails to plead, for instance, if 

the three were friends or if the three had casually met. Young 

likewise fails to plead that W.F. purposefully withheld this 

information. Indeed, if W.F. had met the men briefly a few 

years ago, he may not have remembered meeting them. 

Moreover, Young claims that a new trial is warranted where 

the defendant 'might have been prejudiced,' but Young fails to 

plead how he might have been prejudiced. ... It is not enough 

to plead that W.F. knew these officers -- Young must also 

plead how that fact, if true, might have actually prejudiced 

him. For these reasons, this claim is summarily dismissed.

"Young next claims that he was deprived of an impartial 

jury because of juror B.M.'s contact with the Colbert County 

Sheriff's Office.

"This claim fails to satisfy the specificity and full factual 

pleading requirements of Rules 32.3and 32.6(b) and it fails to 
CR-21-0393

73

state a valid claim for relief or present a material issue of fact 

or law under Rule 32.7(d) of the Alabama Rules of Criminal 

Procedure. After the guilt-phase verdict, juror B.M. contacted 

the Sheriff's Office about suspicious activity on his street that 

he was concerned was linked to Young's case. In a colloquy 

with the trial court, Sheriff Williamson said:

"'I didn't want to talk to you last night because I 

didn't want to be unethical or get in the way of 

these folks that have worked hard on this case. So 

what I wanted to talk to you about was, we checked 

this guy out, and you did good by getting us a tag 

number. And ... we don't think it has anything to 

do with this case. We think that it has to do with 

the break-ins that's going on out there right now. 

So I just wanted you to feel at ease that you could 

do your job today.'

"(R. 1351.) When the Court asked juror B.M. if 'the Sheriff's 

explanation put [his] mind at ease,' B.M. responded, 'correct.'

"Young claims that the trial court improperly disallowed 

B.M. from saying anything further, and did not identify the 

deputies involved, the license plate number, and Sheriff 

Williamson's role. The trial court did not forbid B.M. from 

saying anything further, but rather, cautioned juror B.M. on 

his words. Young also claims that the trial court's statement 

was improper ex parte communication that was not fully or 

adequately disclosed to counsel. The claim is meritless on its 

face, as the attorneys were in the courtroom for this 

discussion. "

(C. 760-62.)

While Young pleaded the name of the juror who, he says, failed to 

disclose that he knew two officers, he pleaded no other facts as to how 
CR-21-0393

74

W.F. supposedly knew the two police officers. Young failed to plead the 

full facts to support this claim. Rule 32.6(b), Ala. R. Crim. P.

Moreover, as noted above, juror B.M. had no improper contact with 

law enforcement. B.M. telephoned the police when there was a 

disturbance in his neighborhood late one night during the trial. There is 

absolutely nothing that suggests that that disturbance was related to 

Young's case. This claim presented no material issue of fact or law that 

would support relief. See Rule 32.7(d), Ala. R. Crim. P. Therefore, Young 

is due no relief on this claim.

Penalty-Phase Issues

IV.

Young next argues that he was deprived of the effective assistance 

of counsel at the penalty phase of his capital-murder trial.

To properly evaluate the claims pleaded by Young, we must 

consider the mitigation evidence that his counsel did present during the 

penalty-phase hearing. "'Although petitioner's claim is that his trial 

counsel should have done something more, we first look at what the 

lawyer did in fact.'" Ray v. State, 80 So. 3d 965, 979 (Ala. Crim. App. 
CR-21-0393

75

2011), quoting Chandler v. United States, 218 F. 3d 1305, 1320 (11th Cir. 

2000).

At the penalty phase, defense counsel presented the testimony of 

Young's maternal aunt, Treena Sidebottom, and Dr. Carol Walker, a 

psychologist who evaluated Young and who had done extensive research 

into Young's background and upbringing.

Sidebottom testified at trial that her sister, Debra Louise Syesta,9

was Young's mother, that her sister ran away when she was 16 years old 

because of the abuse in their household, that when Debra was pregnant 

with Young she was in jail, that when she gave birth to Young her father 

brought Debra and Young back to Florence, that Debra was an addict, 

and that Debra was frequently in trouble with law enforcement and was 

in and out of jail, and that Debra tried to commit suicide several times 

and that in one instance Young found her on the bathroom floor 

unresponsive and called for help. (Trial R. 1416.) When asked to 

described Young's home life, Sidebottom testified:

"[B]efore Johnny Vandiver was in the picture, [Debra] was in 

government assistance and her home was always clean. 

[Young] was thriving and doing okay. They were struggling. 

9In Young's postconviction proceedings his mother's name is spelled 

"Debra"; in the trial transcript her name is spelled "Deborah."
CR-21-0393

76

They didn't have a whole lot of money, but when I would go 

over there things -- things appeared to be okay.

"But when Johnny Vandiver came into the picture, 

that's when they got kicked out of the Section 8 or government 

assistance, and that's when I started noticing -- they moved 

from government assistance and Section 8 house, and then 

they moved into another house. And they moved in, and it 

was just dirty. And I asked [Debra] if I could help her clean, 

and she said no. But basically they just moved in the house 

and it was already dirty. But I tried to talk to her about it, 

but she didn't want to talk about it. So that's when I started 

noticing the house wasn't -- the house was not clean, that 

[Young] was sometimes not clean, that [Young] sometimes 

didn't have what he needed.

"Sometimes they would ask -- Debbie would ask for 

money, although we weren't real sure where the money would 

go to. She said they were turning the utilities off, or they 

didn't have money to eat or whatever. So what I tried to do in 

the alternative was take [Young] out of the house and try to 

help him and clean his clothes and let him spend some time 

with me sometimes. And I would try to take [Debra] to the 

grocery store and let her buy food so that she wouldn't use 

that money to buy things. They -- Debbie and Johnny would 

do drugs and alcohol, and that's where their money was going.

"....

"My earliest recollection of when [Young] was probably 

about three or four years old, and for some reason they had a 

Chucky doll -- the Chucky doll like from the movie. And 

[Young] was scared to death of that doll, and Johnny would 

just terrorize him just relentlessly with that doll. And I got 

on to him, and I couldn't understand why someone would 

make a child so scared and be so hurtful. I didn't understand. 

And not long after that I found out that he was a sex offender 
CR-21-0393

77

and that he had done time in prison for sexual -- sexual abuse 

of a child."

(Trial R. 1428-32.) She further testified that she had seen Vandiver

verbally abuse Young. (Trial R. 1432.)

Dr. Walker testified that she interviewed Young for over 16 hours 

and that she had conducted extensive research into his background and 

upbringing by talking to many of his relatives and obtaining many of his 

records. She testified that she looked at Young's juvenile-courtadjudication records and that included partial records of Department of 

Human Resources services. She also evaluated jail-incident records from 

the Colbert County jail and performed cognitive testing on Young and did 

a neurological assessment and an academic assessment on him. She then 

reviewed documentation of his stepfather, Johnny Vandiver's status as a 

registered sex offender. (Trial R. 1452-53.) She said that she 

interviewed Treena Sidebottom, Young's maternal aunt, for 11 hours;

Matt and Nicole Syesta, Young's maternal aunt and uncle, for 2 hours;

Alice Syesta, Young's maternal grandmother, for 2 hours; and Carolyn 
CR-21-0393

78

Parrot, William Young's sister,10 for one hour. (Trial R. 1455.) Dr. 

Walker further testified: "I wasn't able to speak with some family 

members because they refused to talk with me. They didn't want to be 

involved." (Trial R. 1456.) Dr. Walker testified:

"[Dr. Walker]: According to what I was told, [Young] was 

diagnosed with ADHD, and his behavior was consistent with 

that. He was impulsive. He was hyperactive. And Carolyn 

Parrot said he didn't seem like he was fearful of anything, and 

that's consistent with the impulsivity of ADHD. Everybody 

described him as extremely close to his mother, and even 

though she was -- she was abandoning him for all practical 

purposes, he loved her dearly. And the other thing that I 

learned was that he was bullied while he was in school. It's 

not something that he likes to talk about, but he was bullied 

because of his living situation and also because of his weight."

(Trial R. 1469-70.) Dr. Walker explained that Young's witnessing of the 

violence in his home made him "more likely to be violent." (Trial R. 1472.) 

"[Defense counsel]: In the course of your interviews, did you 

learn about any other ways that [Young's] mother and 

stepfather were negative role models for him?

"[Dr. Walker]: They -- his stepfather stole from the neighbors. 

When somebody new would move in, he would either go -- he 

would go steal from them. They fought with the neighbors. 

They used drugs in front of [Young]. And the most egregious 

to me was when [Young] was nine years old, his mother 

started smoking marijuana with him."

10Young believed that William Young was his father. Dr. Walker 

testified that there was "conflicting information" as to who was Young's 

biological father. (Trial R. 1458.)
CR-21-0393

79

(Trial R. 1474-75.) 

Her investigation, Dr. Walker said, showed that Young had an 

aggressive disorder, a conduct disorder, and ADHD. (Trial R. 1478.) Dr. 

Walker further testified that Young told her that when he was a teenager 

he used: "marijuana, methamphetamine, ice, cocaine, Suboxone, which 

is a drug that started out being used to treat addiction. Opiates and 

benzodiazepines or benzos, most people know them as Xanax or Valium." 

(Trial R. 1484.) Dr. Walker then explained the effect those drugs could 

have on a young person. (Trial R. 1484-90.) She further testified:

"According to what his aunt told me, she estimated that 

[Young's] family moved 30 times in ten years. So he didn't 

have any kind of a neighbor that might have intervened. 

There weren't neighbors who got to know the family well 

enough because, number one, they didn't like them because 

they were thieves. They never got the chance to intervene. 

As I mentioned before, they weren't involved in any kind of 

church family. During the time that his mother was with the 

Jehovah Witnesses, my understanding was that they did not 

socialize with nonmembers. So I don't know if [Young] had 

any involvement with the group.

"There was a lack of commitment to school, even though 

[Young], as I gave y'all his intelligence level, he was plenty 

smart to go to school and to be able to do things. But his 

mother didn't even wake him up to go to school or prepare him 

for the day. And if you let a kid stay up as late as they want 

to at night, they are not going to be able to wake up on their 

own in the morning, for the most part.
CR-21-0393

80

"The fact that his mother smoked marijuana with him, 

I would say that was very aggrievance to me because it's 

giving the sanction to drug abuse to a young child by the most 

important person in his life. There was no restriction against 

any kind of drug use in the home. They lived in poor areas. 

He was exposed to delinquency and violence and associated 

with irresponsibility and associated with a delinquency 

environment.

"He had no father in the home. No contact with any 

paternal role model other than [his stepfather] who was a 

registered sex offender who abused his mother, was a drug 

dealer and drug addict."

(Trial R. 1497-99.)

Indeed, the sentencing court found the evidence so compelling that 

the court made the following statement in its sentencing order:

"The Court heard testimony from [Young's] maternal aunt, 

[Treena] Sidebottom and Dr. [Carol] Walker outlining the 

horrible family life upon which [Young] was exposed and 

brought up in. The Court heard testimony of the poverty and 

chaos of his home, that both mother (whom he loved very 

much) and his stepfather were often engaged in criminal 

activity and were both drug abusers, addicts, and dealers, 

that [Young] smoked marijuana with his mother when he was 

only 9 years old, and he has continued to use illegal drugs 

throughout his life. The testimony regarding [Young's] family 

life and upbringing was very sad and compelling testimony."

(Trial C. 359.) The sentencing court found that Young's "family 

background" was a mitigating circumstance. (Trial C. 360.) 
CR-21-0393

81

A.

First, Young argues that his trial counsel failed to investigate and 

present mitigating evidence that would have supported a sentence of life 

imprisonment without the possibility of parole. He makes several 

different allegations concerning this claim. 

The trial record shows that defense counsel moved for expenses to 

hire an investigator and that that motion was granted. (Trial C. 39, 66.) 

Counsel also moved for expenses to hire a mitigation specialist and filed 

a supplemental motion requesting more funds for that expert. (Trial C. 

42, 78, and 241.) The circuit court approved expenses in the amount of 

$10,000 for that expert. (Trial C. 272.) Counsel also filed an extensive 

motion requesting that the State reveal any possible mitigating

circumstances: Young's criminal history, any information that the 

offense was committed while Young was under the influence of any 

substance, any information regarding Young's culpability in the offense, 

any information that Young acted under extreme duress or under the 

domination of another, and numerous other possible mitigating evidence. 

(Trial C. 100-104.) 
CR-21-0393

82

"Trial counsel is not ineffective for delegating the responsibility of 

investigating mitigation evidence to subordinates." Marshall v. State, 

182 So. 3d 573, 601 (Ala. Crim. App. 2014).

"Moreover, 'counsel's method of presenting mitigation ... 

[is] clearly trial strategy.' Hertz v. State, 941 So.2d 1031, 

1044 (Fla. 2006). See also People v. Ratliff, 41 Cal. 3d 675, 

697, 224 Cal. Rptr. 705, 715 P.2d 665, 678 (1986) ('[T]he 

manner of presenting evidence [is] one of trial tactics properly 

vested in counsel.'). '[T]he presentation of mitigating evidence 

is a matter of trial strategy.' State v. Keith, 79 Ohio St.3d 

514, 530, 684 N.E.2d 47, 63 (1997). 'Matters of trial tactics 

and trial strategy are rarely interfered with or second-guessed 

on appeal.' Arthur v. State, 711 So. 2d 1031, 1089 (Ala. Crim.

App. 1996), aff'd, 711 So. 2d 1097 (Ala. 1997)."

Clark v. State, 196 So. 3d 285, 315-16 (Ala. Crim. App. 2015).

"'The inquiry of whether trial counsel failed 

to investigate and present mitigating evidence 

turns upon various factors, including the 

reasonableness of counsel's investigation, the 

mitigation evidence that was actually presented, 

and the mitigation evidence that could have been 

presented.'"

McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017), quoting 

Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013).

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

Young in this section of his brief to this Court.
CR-21-0393

83

1.

Young first argues that his trial counsel failed to investigate and 

present evidence concerning his mother's mental illness, his mother's 

suicide attempts, his mother's inability to take care of him, and the 

impact of his upbringing and his mother's suicide attempts on Young's 

life. Specifically, Young asserts that counsel should have conducted an 

adequate investigation and obtained a copy of his mother's medical 

records from Riverbend Center for Mental Health ("Riverbend"). 

In summarily dismissing this claim, the postconviction court made 

the following findings:

"Young claims Debra's Riverbend records were 

'essential for any meaningful evidentiary presentation related 

to Debra Vandiver's mental health and treatment.' Young 

also alleges that those records would have proved that Debra's 

illnesses were significant and persuasive.

".... Once again, Young makes a conclusory claim that 

these records were essential when Dr. Walker and 

[Sidebottom] gave extensive insight into Debra's mental 

health issues. Young similarly fails to explain how the 

evidence presented at trial about Debra's mental illness was 

not significant and pervasive. [Sidebottom] testified that 

Debra cut herself, tried to commit suicide multiple times, and 

that several of Debra's attempts resulted in hospitalization. 

Dr. Walker likewise testified that Debra was likely bipolar 

and made several serious suicide attempts. Moreover, Young 

fails to explain how documents covering the same facts would 

not have been cumulative.
CR-21-0393

84

"Young claims these records reveal that Debra was 

diagnosed with depressive disorder, obesity, borderline 

personality disorder, and was told that she needed to 

establish a better home life for Young.

".... Dr. Walker testified that Debra had depressive 

disorder and likely had bipolar disorder. Moreover, Dr. 

Walker testified, when speaking of obesity, that Debra was 

reported to be between 300-500 pounds. Finally, evidence was 

presented that Debra did not provide a good home life for 

Young. Additional evidence of the same would have been 

cumulative.

"Young claims these records reveal Debra's inability to 

keep a job, her Social Security disability benefits, and her lack 

of an income.

"... Young fails to explain how documentary evidence 

that Debra could not hold a job, received government benefits, 

and lacked an income was necessary and not cumulative when

testimony was given to the same effect. Indeed, Dr. Walker 

testified that Young lived in poor areas. [Sidebottom] also 

testified that Young and Debra lived in government housing. 

Dr. Walker testified that Debra did not support herself with a 

job 'as there was not an emphasis placed on self-support. 

They stole.' Moreover, Dr. Walker testified that Debra and 

Young lived off government benefits as she received social 

security or social security disability benefits. Failure to 

present additional evidence of the same would have been 

cumulative."

(C. 727-29.)

In relation to Young's mother's suicide attempts, the postconviction

court stated:
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85

"[Sidebottom], Debra's sister, testified that Debra cut herself 

and was once found unresponsive on the floor after an 

apparent suicide attempt. According to [Sidebottom], Debra 

had to be taken to the hospital. [Sidebottom] likewise 

testified that on other occasions, Debra's suicide attempts 

resulted in hospitalization. Dr. Carol Walker, Young's hired 

clinical psychologist, also described Debra's suicide attempts 

as serious. [Sidebottom] and Dr. Walker both testified that 

Debra tried to commit suicide 'many times.' Furthermore, Dr. 

Walker testified that Debra died of an intentional overdose. 

Thus, counsel knew, as did the jury, that Debra had tried to 

commit suicide several times, that her attempts were serious, 

and that she had likely died of an overdose, and records of 

these events would have been merely cumulative.

"Young claims that Debra's records from Riverbend 

would have documented that she attempted suicide when 

Young was an infant, four years old, and eight years old, the 

last of which he witnessed. According to Young, counsel failed 

to elicit testimony from [Sidebottom] about Young's 

witnessing of Debra's suicide attempt. ...

"Regarding Debra's suicide attempt that Young actually 

witnessed, Young fails to satisfy the specificity and full factual 

pleading requirements of Rule 32.3 and 32.6(b) and to state a 

valid claim for relief or present a material issue of fact or law 

under Rule 32.7(d) of the Alabama Rules of Criminal 

Procedure. Young claims that the jury did not learn how 

severe this attempt was, but Young fails to plead how 

knowing this information likely would have changed his 

sentence. Furthermore, Young claims that he saw this suicide 

attempt, but he does not plead how this impacted his 

development."

(C. 713-15.)
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86

As stated above in the synopsis of the evidence presented at the 

penalty phase, a great deal of the mitigating evidence that Young asserts 

was not presented concerning Young's mother was, in fact, presented at 

sentencing through the testimony of Sidebottom and Dr. Walker. 

"Counsel cannot be ineffective for not presenting evidence that counsel 

did, in fact, present." Clark v. State, 196 So. 3d 285, 318 (Ala. Crim. App. 

2015). "'[A] claim of ineffective assistance of counsel for failing to 

investigate and present mitigation evidence will not be sustained where 

the jury was aware of most aspects of the mitigation evidence that the 

defendant argues should have been presented.'" Walker v. State, 194 So. 

3d 253, 288 (Ala. Crim. App. 2015), quoting Frances v. State, 143 So. 3d 

340, 356 (Fla. 2014).

"'A trial court may summarily dismiss a postconviction petition [on a claim of ineffective 

assistance of counsel] when it is clear upon the face 

of the petition itself or the exhibits or material 

from prior proceedings that there are no facts upon 

which the petitioner could prevail. Robertson v. 

State, 669 So. 2d 11 (Miss. 1996). See also Taylor 

v. State, 782 So.2d 166, 168 (¶4) (Miss. Ct. App.

2000).'

"Fairley v. State, 812 So. 2d 259, 262 (Miss. Ct. App. 2002). 'A 

petitioner's failure to "show how, but for the attorneys' errors, 

the results of the proceedings would have been different"

justifies a district court's decision to summarily dismiss the 
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87

ineffective assistance of counsel claim.' Everett v. State, 757 

N.W.2d 530, 535 (N.D. 2008) (quoting Hughes v. State, 639 

N.W.2d 696, 699 (N.D. 2002)). '[F]ailing to introduce 

additional mitigation evidence that is only cumulative of that 

already presented does not amount to ineffective assistance.'

Jalowiec v. Bradshaw, 657 F.3d 293, 319 (6th Cir. 2011) 

(citing Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).

"'"[I]n order to establish prejudice, the new 

evidence that a [postconviction] petitioner 

presents must differ in a substantial way -- in 

strength and subject matter -- from the evidence 

actually presented at sentencing." Hill v. Mitchell, 

400 F.3d 308, 319 (6th Cir.), cert. denied, 546 U.S. 

1039, 126 S.Ct. 744, 163 L.Ed.2d 582 (2005). In 

other cases, we have found prejudice because the 

new mitigating evidence is "different from and 

much stronger than the evidence presented on 

direct appeal," "much more extensive, powerful, 

and corroborated," and "sufficiently different and 

weighty." Goodwin v. Johnson, 632 F.3d 301, 328, 

331 (6th Cir. 2011). We have also based our 

assessment on "the volume and compelling nature 

of th[e new] evidence." Morales v. Mitchell, 507 

F.3d 916, 935 (6th Cir. 2007). If the testimony 

"would have added nothing of value," then its 

absence was not prejudicial. [Bobby v.] Van Hook, 

[558 U.S. 4, 12,] 130 S.Ct. [13,] 19 [ (2009)]. In 

short, "cumulative mitigation evidence" will not 

suffice. Landrum v. Mitchell, 625 F.3d 905, 930 

(6th Cir. 2010), petition for cert. filed (Apr. 4, 2011) 

(10-9911).'

"Foust v. Houk, 655 F.3d 524, 539 (6th Cir. 2011).

Stallworth v. State, 171 So. 3d 53, 79-80 (Ala. Crim. App. 2013). 
CR-21-0393

88

" '"[T]he failure to present additional mitigating 

evidence that is merely cumulative of that already presented 

does not rise to the level of a constitutional violation." Nields 

v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007) (quoting 

Broom v. Mitchell, 441 F.3d 392, 410 (6th Cir. 2006)).' Eley v. 

Bagley, 604 F.3d 958, 968 (6th Cir. 2010). 'This Court has 

previously refused to allow the omission of cumulative 

testimony to amount to ineffective assistance of counsel.' 

United States v. Harris, 408 F.3d 186, 191 (5th Cir. 2005). 

'Although as an afterthought this [defendant's father] 

provided a more detailed account with regard to the abuse, 

this Court has held that even if alternate witnesses could 

provide more detailed testimony, trial counsel is not 

ineffective for failing to present cumulative evidence.' Darling 

v. State, 966 So. 2d 366, 377 (Fla. 2007)."

Daniel v. State, 86 So. 3d 405, 429-30 (Ala. Crim. App. 2011). 

This claim was properly summarily dismissed because there was no 

material issue of fact or law that would entitle Young to relief. See Rule 

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

Furthermore, Young was 28 years of age at the time of the 

shootings. Many courts have discussed the effectiveness of presenting 

testimony concerning a troubled childhood when the defendant was an 

adult when the murder was committed. 

"'[T]rial counsel's decision not to investigate and 

present evidence regarding Francis's family 

background does not amount to deficient 

assistance. Under certain circumstances, trial 

counsel's decision not to investigate family 

childhood background may legitimately be the 
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89

product of a reasoned tactical choice. See Stanley 

v. Zant, 697 F.2d 955, 970 (11th Cir. 1983), cert. 

denied, 467 U.S. 1219, 104 S.Ct. 2667, 81 L.Ed.2d 

372 (1984). Given the particular circumstances of 

this case including, among other things, the fact 

that Francis was thirty-one years old when he 

murdered Titus Waters, evidence of a deprived 

and abusive childhood is entitled to little, if any, 

mitigating weight. See Francois v. Wainwright, 

763 F.2d 1188, 1191 (11th Cir. 1985). 

Consequently, trial counsel cannot be faulted for 

expending his limited time and resources on other 

vital areas.'"

Washington v. State, 95 So. 3d 26, 44-45 (Ala. Crim. App. 2012), quoting 

Francis v. Dugger, 908 F.2d 696, 703 (11th Cir. 1990). 

This is not a case where counsel failed to conduct any mitigation 

investigation or where counsel failed to present any mitigation. The 

mitigation that was presented was compelling as stated by the 

sentencing judge. For the forgoing reasons, this claim was correctly 

summarily dismissed. Accordingly, Young is due no relief on this claim.

2.

Young next argues that his trial counsel was ineffective because of 

the "weak testimony" counsel presented concerning Young's having been

diagnosed with ADHD when he was a child. 
CR-21-0393

90

The postconviction court found that there was no material issue of 

fact or law that would entitle Young to relief. In dismissing this claim, 

the court stated:

"While Dr. Walker testified that there was no evidence in the 

records that she received indicating that Young had received 

treatment for ADHD, she testified that she had been told by 

family members that Young was taking stimulant medication 

for his ADHD. Dr. Walker also testified that Young was given 

a conditional diagnosis of disruptive disorder, conduct 

disorder, and ADHD, as well as received medication for mood 

swings, while at Three Springs treatment facility [when he 

was a teenager]. Thus, this information was presented to the 

jury, and additional evidence of the same, whether it be 

through records or the testimony of [Sidebottom], would have 

been cumulative."

(C. 730.) 

As the record shows, counsel chose to present evidence of Young's 

ADHD through the testimony of Sidebottom and Dr. Walker. Dr. 

Walker's testimony was based, in part, on records that she had examined 

from Three Springs treatment facility.11 "'[C]ounsel's method of 

presenting mitigation ... [is] clearly trial strategy.' Hertz v. State, 941 

So. 2d 1031, 1044 (Fla. 2006)." Clark v. State, 196 So. 3d 285, 315 (Ala. 

Crim. App. 2015). 

11Three Springs was a juvenile treatment facility that housed young 

juvenile offenders. 
CR-21-0393

91

"A trial strategy decision may only serve as a basis for 

ineffective counsel if the decision is unreasonable. Zink [v. 

State], 278 S.W.3d [170] at 176 [(Mo. 2009)]. The choice of one 

reasonable trial strategy over another is not ineffective 

assistance. Id. '[S]trategic choices made after a thorough 

investigation of the law and the facts relevant to plausible 

opinions are virtually unchallengeable.' Anderson [v. State], 

196 S.W.3d [28] at 33 [(Mo. 2006)] (quoting Strickland, 466 

U.S. at 690, 104 S.Ct. 2052)."

McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. 2012). "[A] tactical 

decision will not form the basis for an ineffective assistance of counsel 

claim unless it was 'so patently unreasonable that no competent attorney 

would have chosen it.'" Brown v. State, 288 Ga. 902, 909, 708 S.E.2d 294, 

301 (2011). For these reasons, this claim was properly summarily 

dismissed, and Young is due no relief on this claim. 

3.

Young next argues that his counsel was ineffective for failing to 

present testimony concerning Johnny Vandiver's violence and cruelty 

toward Young. Specifically, Young argues that counsel should have 

presented the testimony of Scott Dishon, Julian Smith, and Joseph 

Young concerning Vandiver's treatment of Young.

Young pleaded that Dishon would have testified that he was a 

childhood friend of Young's from the age of 10 to 12 and that Young's 
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92

stepfather was a "psycho" who frequently cursed at Young. Smith would 

have testified that he frequently witnessed Young's stepfather yelling at 

Young and at Young's mother. Joseph Young would have testified that 

he went to visit Young when he was 11 years old and left after "Vandiver 

was physically violent with" him. (C. 76.) Young did not plead what 

Vandiver did to Joseph Young that caused him to leave.

The postconviction court found that this claim was not sufficiently 

pleaded because Young failed to plead that the witnesses were willing 

and able to testify at Young's trial. (C. 731-32.) 

Moreover, the trial record shows that Sidebottom testified that 

Vandiver was physically abusive to her sister, that she had witnessed

him restrain her, that she had witnessed him hit her in the face, that she 

had witnessed him grab her by the hair, and that she had witnessed him 

verbally abuse her. She further testified that she had also witnessed

Vandiver verbally abuse Young. (Trial R. 1432.) She detailed a specific 

instance:

"My earliest recollection of when [Young] was probably 

about three or four years old, and for some reason they had a 

Chucky doll -- the Chucky doll like from the movie. And 

[Young] was scared to death of that doll, and Johnny would 

just terrorize him just relentlessly with that doll. And I got 

on to him, and I couldn't understand why someone would 
CR-21-0393

93

make a child so scared and be so hurtful. I didn't understand. 

And not long after that I found out that he was a sex offender 

and that he had done time in prison for sexual -- sexual abuse 

of a child."

(Trial R. 1431-32.) Thus, evidence was presented that Vandiver was 

verbally abusive and cruel to Young. 

"[T]his Court has held that even if alternate witnesses could 

provide more detailed testimony, trial counsel is not 

ineffective for failing to present cumulative evidence. See 

Gudinas v. State, 816 So. 2d 1095, 1106 (Fla. 2002); Sweet v. 

State, 810 So. 2d 854, 863-64 (Fla. 2002). Therefore, trial 

counsel was not ineffective for failing to call Carlton as a 

witness during the penalty phase to present evidence which 

was generally presented by others."

Darling v. State, 966 So. 2d 366, 377 (Fla. 2007). Accordingly, there 

was no material issue of fact or law that would entitle Young to relief on 

this issue, thus, summary dismissal was proper. Young is due no relief 

on this claim.

4.

Young next argues that his trial counsel was ineffective for failing 

to investigate and present physical records of Johnny Vandiver's sexualassault conviction.

In dismissing this claim, the postconviction court stated:

"Young fails to satisfy the specificity and full factual pleading 

requirements of Rules 32.3 and 32.6(b) and to state a valid 
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94

claim for relief or present a material issue of fact or law under 

Rule 32.7(d) of the Alabama Rules of Criminal Procedure. 

Young claims that this information was easily and readily 

available, but he fails to explain how the records were easily 

available. Young likewise fails to plead facts showing that 

these records would have been admissible as relevant. 

Introducing the facts about another, unrelated case would 

likely have received an objection from the State on relevance 

grounds. ... Young fails to explain how evidence of Johnny's 

sexual abuse against his stepdaughter is at all relevant when 

Young does not claim that Johnny also sexually abused him. 

Moreover, Young fails to plead why the details of Johnny's 

sexual assault case were necessary and not cumulative when 

the jury heard multiple times that Johnny had sexually 

abused his stepdaughter."

(C. 733-34.)

The trial record shows that on numerous occasions during 

Sidebottom's and Dr. Walker's testimony they stated that Vandiver had 

a prior sexual-abuse conviction. Trial counsel's decision to present this 

through testimony instead of physical records was clearly a strategic 

decision. Thus, there was no material issue of fact or law that would 

entitle Young to relief on this claim. See Rule 32.7(d), Ala. R. Crim. P. 

Accordingly, Young is due no relief on this claim. 

5.
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95

Young next argues that his counsel failed to investigate and present 

evidence of abuse and mental illness in Young's extended family

specifically, that Young's maternal uncle had mental problems.

In dismissing this claim, the postconviction court stated:

"Young failed to plead how, and from where, counsel could 

have obtained the private records of a private patient of 

Young's non-immediate family. Young likewise fails to 

explain how these records would have been admissible and 

what witness could have properly laid the foundation for these 

records when Patrick and Paul[12] did not testify. Moreover 

Young fails to explain why records of Patrick's mental health 

were necessary and not cumulative when [Sidebottom] 

testified to Patrick's mental health issues, including that he 

was put in a mental health facility. ...

"Regarding the abuse of Paul, Dr. Walker testified that 

there were many members of Young's family that refused to 

talk to her. Young fails to plead that Matthew was not one of 

those people. Young likewise fails to plead that Matthew was 

available and willing to testify in this case when Matthew has 

been completely absent from Young's life. Furthermore, 

Young fails to explain why records of Paul's abuse were 

necessary when the jury heard about Alice's mental health 

issues and abuse of her family."

(C. 734-36.)

The trial record shows that defense counsel asked Sidebottom if any 

of her siblings had mental problems. (Trial R. 1423.) She testified that 

12Paul is Sidebottom's oldest brother; Patrick is another brother.
CR-21-0393

96

her oldest brother, Paul, was abusive and violent and that another 

brother, Patrick, had been put in a mental-health facility in Tarrant 

County in Fort Worth. Patrick had also tried to commit suicide at that 

facility and when he was sent home, he again tried to commit suicide by 

overdosing on Xanax. (Trial R. 1425.) Testimony was presented about 

Young's extended family's mental health. Thus, summary dismissal of 

this claim was proper; therefore, Young was due no relief on this claim. 

6.

Young next argues that counsel was ineffective for failing to 

investigate and present evidence indicating that Young's grandfather 

was supportive of his mother and that Young lost his mother and 

grandfather within weeks of each other.

In dismissing this claim, the postconviction court stated:

"Dr. Walker testified that Paul [Young's grandfather] was 

supportive of Debra. Young fails to plead how it is not obvious 

from this testimony that by supporting Debra, Paul also 

supported Young. Young likewise fails to plead who would 

have, or could have, testified that Paul encouraged Young to 

participate in the family.

"Young claims that [Sidebottom] could have testified 

about his relationship with Paul and about the fact that Paul 

died within weeks of his mother's suicide and within days of 

Young's release from prison. However, Young fails to explain 

the significance of this event. Importantly, Young does not 
CR-21-0393

97

claim that the timing of Paul's death, or that Paul's death in 

general, had a negative impact on his psychological wellbeing. Young likewise fails to plead how [Sidebottom] would 

have testified that once Young was released from prison, he 

had no support from family, when [Sidebottom] herself 

testified that she loves Young. Such 'bare claims' are 

insufficient to warrant further proceedings."

(C. 735-37.)

Young pleaded that counsel should have presented evidence

indicating that Young's grandfather was supportive of him but failed to 

plead the identity of any individual who could have provided such

testimony. Nor did Young plead how the death of Young's mother and 

grandfather affected him. The full facts were not pleaded in regard to 

this claim. See Rule 32.7(d), Ala. R. Crim. P. 

Moreover, the record shows that testimony was presented that 

Young's grandfather was supportive of Young's mother. Sidebottom 

testified that when Debra had Young, her father moved her and the baby 

back into their house in Florence. (Trial R. 1415.) It was clear from 

Sidebottom's testimony that her father had been helpful to his children 

and that her mother was the one that was abusive. Dr. Walker testified 

that "Paul Syesta was supportive of Debbie. ..." (Trial R. 1459.) Thus, 

summary dismissal was proper, and Young is due no relief on this claim. 
CR-21-0393

98

7.

Young next argues that his trial counsel was ineffective for failing 

to present an expert on trauma and its impact on child development. 

Young pleaded that Dr. Paul O'Leary, a psychiatrist, was willing to 

testify concerning the effect that Young's traumatic childhood had on his 

development. (C. 81.) 

In finding that this claim was meritless, the postconviction court 

made the following findings of fact:

 "Young does not explain how Dr. [Carol] Walker, the 

defense's expert, was not qualified to testify on such subjects, 

and thus, why another expert was needed. Indeed, Dr. 

Walker has a Ph.D. in medical clinical psychology. She is also 

board certified in clinical neuropsychology. Dr. Walker 

explained that neuropsychology 'looks after those 

relationships between the brain and behavior.' And, 

importantly, Dr. Walker explained that she has been qualified 

as an expert to discuss cognitive issues related to trauma and 

neurodevelopmental disorders. ... Dr. Walker testified that 

Young had an attachment to his mother, explaining that he 

ran away from a treatment facility to be with her. Dr. Walker 

testified that Young had problems with mood swings and had 

to be on medication for it. Dr. Walker testified that Young has 

been unable to maintain long-term relationships in his life, 

that all of his relationships were short-term, and that, in some 

of his relationships, Young would propose after having known 

his girlfriend for a few weeks. The record reflects that Dr. 

Walker walked through the trauma that Young had 

experienced in his life, including his mother's serious suicide 

attempts and mental illnesses, poverty, his learning 

disabilities, his mother and stepfather's life of crime, his 
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99

chaotic and unstable home, as well as the verbal abuse and 

neglect he received. Then after explaining the trauma of 

Young's life, Dr. Walker testified to some of the symptoms of 

that trauma seen in Young's personal, social, and academic 

life. ... Dr. Walker's testimony addressed the impact the 

trauma in Young's life had on his development and its relation 

to this crime, and Young fails to plead that Dr. [Paul] 

O'Leary's testimony would have been different. The fact of 

the record, then, reveals that Young's claim is meritless."

(C. 737-41.)

As stated above when discussing Dr. Walker's testimony, her 

testimony detailed the trauma Young suffered in his childhood and its 

impact on his life. "[C]ounsel 'is not ineffective for failing to shop for an 

expert that would testify in a particular way." Glass v. State, 227 S.W.3d 

463, 484 (Mo Banc 2007). Therefore, this claim presented no material 

issue of fact or law that would entitle Young to relief. See Rule 32.7(d), 

Ala. R. Crim. P. Accordingly, Young is due no relief on this claim.

B.

Young next argues that his trial counsel was ineffective in opening 

and closing statements in the penalty phase because, he says, counsel did 

not articulate a coherent theory as to why Young should be sentenced to 

life imprisonment without the possibility of parole.
CR-21-0393

100

The postconviction court made the following findings when 

dismissing this claim:

"The record clearly reflects that counsel mentioned 

specific examples of Young's traumatic childhood. Counsel 

stated that Young's mother abused drugs and was not stable, 

[that] Young never had a sense of community, [that] his only 

male role model was a sex offender, [that] his stepfather 

abused drugs and his mother, and [that] he lost his mother 

who he dearly loved. Though counsel does not mention 

Debra's suicide attempts and Paul's passing, Young fails to 

plead how counsel's 'failure' render counsel's statements 

incoherent.

"Young claims that counsel failed to challenge the 

State's two aggravating circumstances in opening statements, 

instead opting to argue these points in closing, thus 

eliminating the State's burden of proof, but Young fails to 

explain how counsel's decision to address the State's 

aggravating circumstances in closing rather than in opening 

statements eliminated the State's burden of proof. Young 

fails to plead how this was not a matter of sound trial strategy, 

ensuring that the jury focused on the trauma of Young's life 

by talking about it in opening statements. Moreover, Young 

fails to explain how counsel's strategic decision actually 

prejudiced him.

"Young claims that counsel's closing argument was 

haphazard and offered only a cursory list of his traumatic life 

experiences, but Young completely fails to specify what 

counsel should have said instead. Nor does Young explain 

how counsel's actions fell below an objective standard of 

reasonableness. Moreover, Young does not specifically plead 

how there is a reasonable probability that he would not have 

been sentenced to death but-for counsel's alleged errors. 

Rather, Young presents a conclusory allegation that he was 
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101

prejudiced. Such 'bare claims' are insufficient to warrant 

further proceedings. Rule 32.6(b), Ala. R. Crim. P."

(C. 742-43.)

The record shows that trial counsel had a coherent closing 

argument that discussed many mitigation factors. That argument 

stated, in part:

"[Young's] father figure, Johnny Vandiver, he was a 

registered sex offender. He used drugs and participated 

regularly in criminal activity. [Young] had no parental roots.

His mother abused drugs, quite possibly while she was 

pregnant with [Young]. [Young] witnessed parental drug use 

while growing up. She began smoking marijuana with him 

when he was nine years old. [Young's] family moved a lot and 

never established placement in a community. He never had a 

place. I grew up in Ford City, and many of you probably know 

where that is. That's my home. [Young] can't say where his 

home is. [Young] witnessed domestic violence against his 

mother. There's no family commitment to education, and he 

missed a lot of school. [Young] spent a lot of time in group 

homes and boot camps, and his mother didn't even come to 

visit with him. [Young] has ADHD, and that's another issue. 

[Young's] family had a lack of family unity. [Young] never saw 

anyone in his home keep a steady job. You know the older I 

get it seems to me the more important that is. For kids to see 

somebody working, doing something with themselves.

"And another one that we haven't talked about here that has 

come out in the guilt-phase trial, [Young] didn't shoot Mr. 

Freeman. Now, is he guilty of capital murder? Yes. Okay. But 

a mitigating factor is, [Young] did not shoot him. There is no 

evidence whatsoever that the gun that [Young] had even hit 

the car. As a matter of fact, [the prosecutor] even made 
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102

mention of that in his closing statement, if you do recall. That 

is a mitigating factor."

(Trial R. 1555-56.) Also, the argument was so effective that the 

sentencing court found that Young's childhood was a mitigating 

circumstance. For the above-stated reasons, summary dismissal of this 

claim was proper, and Young is due no relief on this claim. 

C.

Young argues that counsel was ineffective in failing to adequately 

prepare and elicit testimony from Dr. Carol Walker. Specifically, Young 

pleaded that Dr. Walker should have given more detail about his 

mother's mental illness and more detail about his childhood.

The postconviction court made the following findings on this claim:

"The record reflects that Dr. Walker presented effective 

testimony concerning Debra's illnesses. Dr. Walker testified 

twice that Debra likely died of suicide. Dr. Walker testified 

that Debra had a history of depression and likely had bipolar 

disorder. Dr. Walker testified that everyone she spoke to told 

her that Debra made several serious suicide attempts. Dr. 

Walker explained that Debra had tried multiple times to 

commit -- one such time Young witnessed. Finally, Dr. 

Walker testified that Debra was treated for her mental 

conditions. Young fails to plead why more information about 

Debra's mental health was needed for counsel to effectively 

prepare Dr. Walker's testimony about this subject. 

"Young claims that Dr. Walker's testimony about his 

trauma was incoherent and non-specific, but Young fails to 
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103

explain which parts of her testimony were problematic and he 

fails to provide examples of how her testimony could have 

been more specific. He claims that Dr. Walker gave damaging 

testimony about his intellectual capability, but he fails to 

explain how her testimony could have been tempered with 

further preparation with trial counsel. Dr. Walker performed 

an intellectual assessment on Young that showed he was of 

average to above average intelligence, and she testified to this 

fact. Young fails to plead how counsel could have avoided the 

results of this assessment or how counsel could have better 

coached Dr. Walker in her answers in this regard -- the 

assessment reveals what it reveals.

"Young claims that Dr. Walker failed to give effective 

testimony regarding the ongoing impact of his trauma 

because the jury did not hear specifics, was not given dates, 

and was not presented with a meaningful timeline. However, 

the record reflects that Dr. Walker shared the trauma that 

Young had experienced in his life, including his mother's 

multiple, serious suicide attempts, his mother's mental 

illnesses, poverty, learning disabilities, his mother and 

stepfather's life of crime, his mother's likely suicide, his 

chaotic and unstable home, and the verbal abuse and neglect 

he received. After explaining the trauma seen in Young's 

personal, social, and academic life. Then, at the end of her 

testimony, Dr. Walker explained how the trauma of Young's 

life, or 'effective factors,' could have played a part in Young 

committing this crime. Young fails to plead how such 

testimony, despite the absence of dates, was not effective or 

meaningful."

(C. 744-46.)

First, Young did not plead what counsel should have done in order 

to "properly" prepare Dr. Walker to testify. Second, defense counsel's 

examination of Dr. Walker was very thorough and effective. A review of 
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104

the penalty phase shows that counsel's presentation of the evidence was 

effective. Accordingly, this claim was properly summarily dismissed, and 

Young is due no relief on this claim.

D.

Young next argues that his counsel was ineffective for failing to 

effectively prepare and question Treena Sidebottom, Young's maternal 

aunt who testified at the penalty phase.

The pleadings on this claim consist of the following, in part:

"[C]ounsel's failure to adequately investigate and obtain all 

relevant records including Debra Vandiver's Riverbend 

records and talk to numerous witnesses prior to preparing 

and presenting Sidebottom's testimony prejudiced Young. 

Counsel failed to elicit important information that Sidebottom 

could have shared with the jury."

(C. 87.) 

The postconviction court, in dismissing this claim, stated:

"Young fails to plead why Debra's Riverbend records were 

necessary for [Sidebottom] to give adequate testimony about 

Debra's mental illnesses. [Sidebottom] testified that Debra 

tried to commit suicide, indicating that Debra was depressed. 

Young likewise fails to explain why further testimony from 

[Sidebottom] was needed when Dr. Walker testified that 

Debra had depression and likely had bipolar disorder and 

obesity. Nor does Young plead how [Sidebottom] could have 

testified about Debra's mental illnesses further when the trial 

court instructed her that she could not 'testify to diagnosis 

and that type of thing.'
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"Young similarly fails to adequately plead why 

knowledge that [Sidebottom] tried to assist Debra four times 

after her suicide attempts was necessary when [Sidebottom]

testified generally that she tried to assist Debra after her 

suicide attempts. The record likewise reflects that 

[Sidebottom] was so concerned about her sister that she 

thought about adopting Young, but worried about what that 

would do to her sister's mental health.

"Furthermore, Young claims that 'it was critical [on redirect] to elicit testimony from Sidebottom to explain 

Sidebottom's different outcome in adult life compared to her 

sister Debra's.' Young fails to plead how counsel could have 

done this or what counsel should have asked. The record 

reveals, however, that [Sidebottom] gave this testimony. 

Indeed, [Sidebottom] gave testimony highlighting the 

differences in her adult life and Debra's adult life despite their 

rough upbringing. Moreover, Young's claim that [Sidebottom]

did not testify about the different mental and psychiatric 

realities of the sibling pairs is without merit. Young fails to 

explain how [Sidebottom] could have given any more detail 

than what she did, considering the trial court's order limiting 

her testimony on the subject."

(C. 748-50.)

Sidebottom's testimony was detailed and effective. Young's 

mitigation expert, Dr. Walker, testified that she spent 11 hours talking 

with Sidebottom. There was no material issue of fact or law that would 

entitle Young to relief under Strickland. See Rule 32.7(d), Ala. R. Crim. 

P. Thus, summary dismissal of this claim was proper, and Young is due 

no relief on this claim.
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E.

Young next argues that his trial counsel was ineffective for failing 

to challenge the State's case in aggravation. He makes several different 

arguments in support of this contention.

1.

First, Young argues that counsel was ineffective for failing to 

investigate his prior felony conviction for robbery in the third degree. He 

also argues that trial counsel was ineffective in not challenging his 

conviction at this trial for discharging a weapon into an occupied vehicle 

because, he says, the jury was free to consider that felony as an 

aggravating circumstance. 

In summarily dismissing this claim, the postconviction court stated:

"Young fails to explain how knowing the underlying facts of 

his third-degree robbery conviction would have tempered the 

State's aggravation case. Indeed, Young was convicted of a 

violent felony, and he does not plead facts that show 

otherwise. Such 'bare claims' are insufficient to warrant 

further proceedings.

"....

"Moreover, Young's claim that the jury was invited to 

consider his conviction for discharging a firearm into an 

occupied vehicle as an additional felony during sentencing is 

without merit. Indeed, the trial court specifically instructed 

the jury that it could only consider as aggravating 
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circumstances Young's prior felony convictions for robbery in 

the third degree and assault in the second degree. For this 

reason, a special instruction and verdict form were not 

necessary or warranted."

(C. 751-53.)

First, Young pleaded no circumstances surrounding his prior 

conviction for robbery in the third degree except that he had stolen a 

bicycle. No other facts surrounding that conviction were pleaded in 

Young's petition. Young merely pleaded "bare fact" in support of this 

claim; thus, summary dismissal was proper. See Rule 32.6(b), Ala. R. 

Crim. App. 

Second, the circuit court's jury charge in the penalty phase stated

that the jury could consider as aggravating circumstances only Young's 

conviction for robbery in the third degree and his conviction for assault. 

(Trial R. 1566.) The jury was not invited to consider an improper felony 

in aggravation. Thus, this claim presented no material issue of fact or 

law that would entitle Young to relief. Accordingly, Young is due no relief 

on these claims.

2.
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Young next argues that his trial counsel was ineffective for failing 

to challenge the aggravating circumstance that Young's conduct of 

shooting in a parking lot created a great risk of death to many persons. 

The postconviction court found that this claim was due to be 

dismissed because the underlying argument in support of the ineffectiveassistance-of-counsel claim had been addressed by this Court on direct 

appeal. This Court stated, in part:

"The evidence at trial showed that after Young parked 

the white pickup truck at the Spring Creek Apartments and 

got out of the vehicle with Capote, one or both of them shot at 

Freeman at least 15 times. Det. Holland testified that after 

the shooting there were shell casings scattered 'all over the 

parking lot.' The surveillance footage shows several vehicles 

in the parking lot near the shooting. Less than a minute after 

the shooting a man can be seen on the surveillance footage 

opening an apartment door and peering outside. Lt. Wear, 

who arrived at the Spring Creek Apartments less than five 

minutes after the shooting, testified that when he arrived 

there were '[a] lot of people' at the scene, and two or three 

witnesses told him that a white truck had left the scene. 

Captain Setliff testified that when he arrived at the scene less 

than 30 minutes after the shooting there were people '[a]ll the 

way around the parking lot.' He estimated there were 'at least 

75 to 100' people in the parking lot. Sumerel, the apartment's 

property manager, testified that there are 60 units in the 

Spring Creek Apartments with a total capacity of 224 people. 

She testified that in March 2016 at least 55 of the 60 units 

were full, mostly of women and children.
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"This evidence, showing that there were people in the 

residential area where the shooting happened, was enough for 

the circuit court to submit to the jury the question whether 

Young 'knowingly created a great risk of death to many 

persons,' and for the jury to find – and the circuit court to 

consider and weigh – that aggravating circumstance."

Young, ___ So. 3d at ___.

The trial record reflects that defense counsel did present some 

argument against this aggravating circumstance. In the circuit court's 

order sentencing Young to death, the court referenced this argument: 

"The Court heard defense counsel argue that the aggravating 

circumstance of defendant knowingly creating a great risk of death to 

many persons being weak in this case, and that had the deceased not 

been sitting his car but standing outside of his car it would not have been 

capital murder." (Trial C. 350-51.)

Thus, this claim was correctly summarily dismissed because the 

underlying claim had no merit. Counsel cannot be ineffective for failing 

to raise a claim that has no merit. See Bush v. State, 92 So. 3d 121 (Ala. 

Crim. App. 2009). For these reasons, Young is due no relief on this claim.

V.
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110

Young next argues that the postconviction court erred in denying 

his motion for discovery. The record shows that Young filed two motions 

for discovery. His argument on this claim does not identify which motion 

Young is challenging on appeal. (Young's brief at p. 95.)

The record shows that Young filed a "motion for discovery of 

prosecution files, records, and information necessary for a fair Rule 32 

proceeding." (C. 253.) At the same time, Young also filed a "motion for 

discovery of institutional, files, records, and information necessary for a 

fair Rule 32 proceeding." (C. 274.) The State moved that the 

postconviction court first dispose of the motion to dismiss the Rule 32 

petition that was pending before disposing of the motions for discovery. 

(C. 295.) 

In Alabama, there is no inherent right to discovery in a 

postconviction proceeding. The Alabama Supreme Court has held that

to be entitled to discovery in Rule 32 proceedings, a petitioner must 

establish "good cause" for the requested discovery. See State v. Martin, 

69 So. 3d 94 (Ala. 2011), and Ex parte Land, 775 So. 2d 847 (Ala. 2000).

"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. We have held in the previous sections of this 
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opinion that the circuit court did not err by summarily 

dismissing Morris's claims, and it follows that Morris did not 

meet the good-cause standard for obtaining postconviction 

discovery. Accordingly, the circuit court did not commit error 

when it denied Morris's postconviction discovery requests. 

See, e.g., Davis v. State, 184 So.3d 415, 447 (Ala. Crim. App.

2014)."

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

the postconviction court did not err by failing to grant Young's motion for 

discovery. Accordingly, Young is due no relief on this claim.

VI.

Last, Young argues that the postconviction court's wholesale 

adoption of the State's summary-dismissal order violates State and 

federal law. He argues that aside from the deletion of one paragraph, 

the final order is the same as the State's proposed order and that it 

suffers from the same typographical errors.

Young filed a lengthy objection to the postconviction court's 

wholesale adoption of the State's order. (C. 764.) 

"[T]he general rule is that, where a trial court does in fact 

adopt the proposed order as its own, deference is owed to that 

order in the same measure as any other order of the trial 

court. In Dobyne v. State, 805 So. 2d 733, 741 (Ala. Crim.

App. 2000), the Court of Criminal Appeals stated:

"'"'While the practice of adopting the state's 

proposed findings and conclusions is subject to 
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112

criticism, the general rule is that even when the 

court adopts proposed findings verbatim, the 

findings are those of the court and may be reversed 

only if clearly erroneous.'"'

"805 So. 2d at 741 (quoting other cases; emphasis added). In 

McGahee v. State, 885 So. 2d 191, 229-30 (Ala. Crim. App.

2003), the Court of Criminal Appeals stated that 'even when 

a trial court adopts verbatim a party's proposed order, the 

findings of fact and conclusions of law are those of the trial 

court and they may be reversed only if they are clearly 

erroneous.' Cf. United States v. El Paso Natural Gas Co., 376 

U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) (expressing 

disapproval of the 'mechanical' adoption of findings of fact 

prepared by a party, but stating that such findings are 

formally those of the trial judge and 'are not to be rejected outof-hand')."

Ex parte Ingram, 51 So. 3d 1119, 1122-23 (Ala. 2010). The Alabama 

Supreme Court has found error in the adoption of a proposed order when 

the court adopted one of the pleadings of the State, Ex parte Scott, 262 

So. 3d 1266 (Ala. 2011), and when the court adopted an order that 

incorporated statements that the findings were based on personal 

knowledge of the judge when the judge issuing the order did not preside 

over the trial. See Miller v. State, 99 So. 3d 349 (Ala. Crim. App. 2011). 

This Court has not reversed a court's adoption of a proposed order when 

that order contained merely typographical errors. See Ex parte Ingram, 

supra. 
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113

In this case, there is nothing to indicate that the order adopted from 

the State's proposed order was not the judge's own independent judgment

or that it was "merely an unexamined adoption of the proposed order 

submitted by the State." Mashburn, 148 So. 3d at 1113. We find that 

the postconviction-court's findings are not clearly erroneous. Thus,

Young is due no relief on this claim.

For the foregoing reasons, we affirm the circuit court's summary 

dismissal of Young's postconviction petition attacking his capital-murder 

conviction and sentence of death.

AFFIRMED.

Windom, P.J., and McCool, Cole, and Minor, JJ., concur.