Jesse Earl Scheuing v. State of Alabama (Appeal from Calhoun Circuit Court: CC-09-426.60)

Rel: September 27, 2024

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

Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,

Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections

may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals

OCTOBER TERM, 2023-2024

_________________________

CR-2022-0684

_________________________

Jesse Earl Scheuing

v.

State of Alabama

Appeal from Calhoun Circuit Court

(CC-09-426.60)

COLE, Judge.

Jesse Earl Scheuing, an inmate on Alabama's death row, appeals

the Calhoun Circuit Court's summary dismissal of his Rule 32, Ala. R.

Crim. P., petition for postconviction relief.

CR-2022-0684

Facts and Procedural History

"In August 2008, Scheuing was released on parole in the

State of Georgia. He had been convicted of thefts of

automobiles, breaking and entering into automobiles, escape,

and being a felon in possession of a firearm. James Potts, a

friend of Scheuing who lived in Alabama, went to Georgia and

brought Scheuing to Alabama to stay with Potts and his wife,

Tifani Kulp. On November 20, 2008, Scheuing failed to report

to his parole officer as required by the terms of his parole.

"A couple of days before Thanksgiving, Scheuing stole a

Kia Sportage automobile from Dean Jakiel's driveway. Jakiel

had borrowed the Sportage from Lani Harrison, his daughter,

and had parked it in his driveway, leaving the keys in the

ignition. Also left in the Sportage was Jakiel's loaded, .38

caliber, five-shot, hammerless Smith and Wesson revolver

and a box of ammunition for the gun. Within a day or two

after stealing the Sportage, Scheuing abandoned the vehicle,

but he kept the gun and ammunition that was in the vehicle.

"On November 26, 2008, the day before Thanksgiving,

Potts took Scheuing to the home of Sean Cook, who was a

friend of Potts. While there the three men smoked marijuana,

and Cook sold a small amount of marijuana to Potts and

Scheuing. That night, Potts, Kulp, and Scheuing gave

Jeanette Rutledge, a friend of Potts and Kulp, a ride to her

home. During the ride, Potts told her that he had a .38 caliber

pistol in the car.

"Shortly after midnight on November 28, 2008,

Scheuing decided to rob a store to get money to buy Potts an

Xbox 360 video-game console and to get transportation to

Grand Rapids, Michigan, where Scheuing wanted to meet a

woman he had communicated with in an Internet chat room.

Scheuing, Potts, and Kulp got into Potts's car, with Potts

driving and Scheuing sitting in the back seat behind him.

Sometime during the ride, Scheuing twice test fired the gun

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he had stolen from the Sportage by shooting it out the car

window; he did this to learn the gun's characteristics when

fired. Also at some point during the night, Scheuing decided

that he was going to kill whomever he robbed. The three

drove around trying to find a place that would be easy to rob.

They rejected most of the stores they saw because the clerks

were enclosed in bullet-proof glass; they also rejected a Waffle

House restaurant because it had too many customers.

Scheuing finally decided that the target would be the Pak-a-

Sak convenience store in Oxford. Although Potts and Kulp

knew that Cook worked at the store as a cashier, they did not

recognize him as the cashier when they drove by the store that

morning.

"Potts parked the car a couple of blocks behind the Pak-

a-Sak store. Scheuing walked to the store; he had the .38

caliber pistol in the back pocket of his pants. When Scheuing

walked up to the store, Cook, who had to push a button to

allow someone to enter the store, recognized Scheuing and

allowed him in. Scheuing briefly spoke with Cook before

asking where the restroom was. Scheuing had planned to put

on a hockey mask he had with him while in the restroom, but,

because Cook had recognized him, Scheuing decided not to use

the mask. There were three customers in the store when

Scheuing first entered, so he went into the restroom and

waited until he heard them leave. After leaving the restroom,

Scheuing walked to the counter where he talked with Cook

about various topics. As they spoke about marijuana and the

'munchies' (State's Exhibit 96), Scheuing said that he was

hungry and walked to the candy aisle. There, where Cook was

unable to see what Scheuing was doing, Scheuing moved the

.38 caliber pistol from his pants pocket to his coat pocket. With

his hand in the coat pocket containing the pistol, Scheuing

then walked back to the counter and continued speaking with

Cook. Cook turned his head, looking out the window at a

passing car; Scheuing pulled out the gun, and, when Cook

turned back toward Scheuing, Scheuing shot him in the head.

Scheuing then took the cash-register drawer and ran out the

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door. He went back to the car and told Potts and Kulp that

he had shot Cook. The three returned to Potts's home where

Scheuing and Potts took the money from the cash-register

drawer. The two men then took the cash-register drawer to a

remote road where they cleaned their fingerprints from the

cash-register drawer and then abandoned it.

"A short time after Scheuing left the store, Mary De La

Zerda, a regular customer of the Pak-a-Sak store and an

acquaintance of Cook's, arrived there. When she first entered

the store, De La Zerda called for Cook because she did not see

him. After getting no response from him, she noticed that the

counter area was in disarray. De La Zerda again called for

Cook and, receiving no response, walked behind the counter

where she found him lying on floor. She then went outside

and telephoned emergency 911.

"Officer Jake Durham of the Oxford Police Department

was dispatched to the Pak-a-Sak store in response to the 911

call and was the first officer to arrive on the scene. After

speaking with De La Zerda, Officer Durham entered the store

with Officer Eric Hood and Officer Jamie Clark. Once inside,

Officer Durham noticed that the cash-register drawer was

missing and that 'items were out in the floor and strewn all

over the place.' (R. 542.) After seeing Cook lying on the floor,

Officer Durham alerted the other officers of the situation and

had them separate. Officer Durham went 'straight through

the building back toward the cooler and the bathroom areas'

(R. 543) while Officer Hood went down the aisles and Officer

Clark went behind the counter. Officer Clark saw Cook on the

floor and noticed that '[h]e had some vomit around his mouth,'

'had a very gray complexion,' and 'appeared to be deceased.'

(R. 635.) After not finding anyone else in the building, the

officers went back outside, put up crime-scene tape, and

secured the scene until someone from the investigation

division of the police department arrived.

" ….

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"After Scheuing and Potts disposed of the cash-register

drawer, they went to a Walmart retail store where they

purchased an Xbox 360, an Oblivion video-game cartridge for

the video- game console, and a Playstation 2 video-game

cartridge. The Playstation 2 cartridge was purchased so

Scheuing would have something to play while Potts was

playing Oblivion. While they were playing the games at

Potts's house, Cook's teenage brother called Potts and

threatened him, Kulp, and their son. Cook's brother made the

threats because he believed that Potts had shot Cook.

"Due to the telephone call, Potts decided that they

needed to get rid of the gun Scheuing had used to kill Cook.

Scheuing, Potts, and Kulp got back into Potts's vehicle. While

they were driving over a bridge, Scheuing threw the gun and

the ammunition out of the passenger-side window and into a

lake.

"At the Pak-a-Sak store, investigators contacted a

manager who came in and retrieved video from the recording

equipment at the store. The video revealed that an individual

wearing a black and red coat and a black hat with a skull on

top came into the store and, after walking around the store

and speaking with Cook, pulled a gun out of his coat pocket

and fired one shot at Cook. The man then picked up the cash-

register drawer and ran out the door. Investigators were also

able to obtain a video of a parking lot from another local

business. That video showed the man who shot Cook getting

out of the back seat of a car and then returning to the back

seat of the same car a few minutes later.

"After dropping Kulp off at work, Scheuing and Potts

went to the Greyhound bus station to purchase a ticket to

Grand Rapids, Michigan. Because they had spent so much

money on the video-game console and cartridges, Scheuing

did not have enough money left to buy the bus ticket.

Scheuing and Potts decided to stay away from Potts's home

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for the day and that, in the evening, Potts would drop

Scheuing off somewhere so Scheuing could steal a car to drive

to Grand Rapids.

"Scheuing and Potts spent the day together, smoking

marijuana and selling game cartridges and memory cards.

After picking Kulp up from work, Potts and Kulp dropped

Scheuing off at an abandoned mobile-home park. Scheuing

stashed his belongings at the mobile-home park, then stole a

GMC Yukon sport-utility vehicle that belonged to Jackie

Williams. After returning to the mobile-home park, Scheuing

retrieved his belongings and began his drive to Grand Rapids.

"Investigators were able to lift fingerprints from the

counter of the Pak-a-Sak store, and one of those fingerprints

belonged to Scheuing. After the story of the robbery-murder

was televised during the local news, investigators received a

tip informing them that Scheuing had been with Potts and of

type of vehicle Potts drove. Based on that information,

investigators went to Potts's mobile home and received

permission from him to search his vehicle and mobile home.

While searching Potts's car, investigators located a black and

red jacket that matched the one worn by Scheuing when he

shot Cook. Inside Potts's mobile home, investigators found a

hat matching the one Scheuing had worn while he was inside

the Pak-a-Sak store. They also located a receipt from

Walmart store that was generated shortly after the robbery

and murder. The investigators went to the Walmart store and

were able to secure a video showing Potts and Scheuing in the

store purchasing the Xbox 360 and video-game cartridges.

The cash-register drawer was recovered when a citizen, who

lived on a dead-end road, reported that he had found it near

his driveway.

"When he got to Michigan, Scheuing went to meet the

woman with whom he had communicated in the Internet chat

room. She told him that because officers had contacted her

and told her what he had done, she did not want anything to

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do with him. Thereafter, Scheuing left. While still in

Michigan, Scheuing swapped the license plate on the Yukon

with one on a truck parked at a Days Inn hotel. He then drove

west into Iowa.

"In Iowa, Scheuing stole Glenda Palmer's purse at a

Walmart store but, before Scheuing was able to leave the

parking lot, another person opened the passenger door of the

Yukon and took back the purse. Scheuing ran out of gas on

an interstate highway and began walking. While doing so,

Scheuing convinced people to give him money on three

separate occasions. On December 4, 2008, Scheuing used the

money to buy a bus ticket to St. Louis, Missouri, which was as

far as he could afford to travel with the money the people had

given him, and he rented a room at the Red Carpet Inn motel

in Knoxville, Iowa. The employee of the motel who rented the

room to Scheuing had seen a story about him on the evening

news and telephoned law enforcement. Scheuing was

apprehended that afternoon.

"The next day, Special Agent Adam DeCamp and

Special Agent Don Schnitker of the Iowa Division of Criminal

Investigations interviewed Scheuing after he waived his

Miranda rights. During the first part of the interview,

Scheuing told Agent DeCamp and Agent Schnitker that he

alone decided to rob a store to get money to buy Potts an Xbox

360 and to get money he could use to go to Michigan. He told

the agents that he had taken Potts's vehicle without Potts's

knowledge and had driven to the store. Scheuing detailed his

time inside the Pak-a-Sak store, including how he had shot

Cook, and told them that after he had disposed of the gun,

ammunition, and cash-register drawer, he went back to

Potts's house where he woke up Potts and told him that he

was giving the money to him as a gift without telling him its

source. The two of them, Scheuing said, then went to a

Walmart store where they bought the video-game console and

video-game cartridges. Scheuing further stated that he told

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Potts what he had done to get the money only after Cook's

brother had threatened Potts.

"During a break in the interview, the agents contacted

investigators in Alabama and relayed to them the story

Scheuing had given. When the interview resumed, the agents

confronted Scheuing with the fact that they knew he was not

telling the truth. Scheuing then told the truth about Potts's

involvement in the crime.

"Following his extradition back to Alabama, Officer

Michael Kane of the Weaver Police Department spoke with

Scheuing about the theft of the Yukon. After he had executed

a waiver-of-rights form, Scheuing wrote a statement for

Officer Kane. In his statement Scheuing wrote that, around

8:00 p.m. on an 'unknown date,' he stole a silver Yukon and

drove to Grand Rapids, Michigan. (State's Exhibit 34.) He

further wrote that he then drove to Iowa where he 'eventually

ran out of gas and left the vehicle on the entry ramp to the

interstate.' (State's Exhibit 34.) Scheuing also wrote that,

before he had left Calhoun County, Alabama, he had taken

the Yukon to an abandoned mobile-home park to get clothes

he had left. In the mobile-home park, he left 'most of the

personal effects' that had been in the Yukon. (State's Exhibit

34.) Scheuing concluded the statement by writing that he had

'donated the clothes in the vehicle to Mel Trotters (sic)

ministries.' (State's Exhibit 34.)

"Officer Kane informed Lieutenant Charles Plitt of the

Weaver Police Department of the information Scheuing had

provided. Lt. Plitt went to a vacant mobile-home park in

Weaver where the remains of an abandoned mobile home still

stood. This place was known to him as a place where people

hid and disposed of stolen property. At the driveway of that

mobile home, he found Williams's purse and other items.

" ....

8

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"The autopsy of Cook's body was performed by Dr.

Valerie Green, a state medical examiner with the Alabama

Department of Forensic Sciences. Dr. Green determined that

Cook had a gunshot entrance wound 'right in the center of the

forehead.' (R. 596.) … She concluded that the cause of death

was the 'gunshot wound to the head' and that the manner of

death was homicide. (R. 620.)

"The bullet was examined by Dancy Sullivan, a forensic

scientist with the Alabama Department of Forensic Sciences.

Based on her examination of the bullet, Sullivan concluded

that the 'bullet was a .38 caliber class bullet loaded in [a] .38

Special caliber cartridge[].' (R. 816.) Sullivan expected that

the bullet would have been fired by a 'Smith & Wesson or

similar .38 Special caliber firearm[] or Ruger, Smith &

Wesson, Taurus, or similar .357 caliber firearm[].' (R. 816.)"

Scheuing v. State, 161 So. 3d 245, 252-57 (Ala. Crim. App. 2013)

(footnotes omitted).

In March 2009, a grand jury indicted Scheuing for capital murder

for killing Cook during the course of a first-degree robbery, a violation of

§ 13A-5-40(a)(2), Ala. Code 1975, and for first-degree theft of the sport-

utility vehicle, a violation of § 13A-8-3, Ala. Code 1975. Following his

September 2010 trial, the jury found Scheuing guilty of both offenses. As

to his capital-murder conviction, the jury -- after unanimously finding

beyond a reasonable doubt the existence of one aggravating circumstance

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-- recommended by a vote of 10 to 2 that Scheuing be sentenced to death.1

The trial court followed the jury's recommendation and sentenced

Scheuing to death. As to his theft conviction, the trial court sentenced

Scheuing, as a habitual felony offender, to 60 years' imprisonment.

On direct appeal, this Court affirmed Scheuing's convictions and

sentences. See Scheuing, 161 So. 3d 245. After the Alabama Supreme

Court denied his petition for a writ of certiorari, this Court issued a

certificate of judgment on September 19, 2014. On September 15, 2015,

Scheuing timely filed a Rule 32 petition challenging his convictions and

sentences.

Over the next five years, Scheuing amended his petition three

times. The State moved to dismiss his petition and each amendment

thereto. On April 1, 2022, the circuit court issued a 65-page order

dismissing Scheuing's petition. Scheuing then moved the circuit court to

1This Court's opinion on direct appeal says that the jury

"recommended, by a vote of 10 to 2, that [Scheuing] be sentenced to life

in prison without the possibility of parole." Scheuing, 161 So. 3d at 252.

The record on direct appeal (of which we take judicial notice of in this

case), however, shows that the jury recommended that Scheuing be

sentenced to death by a vote of 10 to 2. (See Record in CR-10-1454, C. 5,

79, and 96.)

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reconsider its judgment. The circuit court did not rule on Scheuing's

motion. This appeal follows.

Standard of Review

It is well settled that a circuit court may summarily dismiss a Rule

32 petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

"[i]f the court determines that the petition is not sufficiently

specific, or is precluded, or fails to state a claim, or that no

material issue of fact or law exists which would entitle the

petitioner to relief under this rule and that no purpose would

be served by any further proceedings...."

See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003);

Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v.

State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992). When this Court

reviews a circuit court's summary dismissal of a postconviction petition,

the standard we use " 'is whether the [circuit] court abused its

discretion.' " Lee v. State, 44 So. 3d 1145, 1149 (Ala. Crim. App. 2009)

(quoting Hunt v. State, 940 So. 2d 1041, 1049 (Ala. Crim. App. 2005)). If

the circuit court bases its decision on a " cold trial record," however, we

apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 353

(Ala. 2012). "[W]hen reviewing a circuit court's rulings made in a

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postconviction petition, we may affirm a ruling if it is correct for any

reason." Bush v. State, 92 So. 3d 121, 134 (Ala. Crim. App. 2009).

As explained below, the circuit court summarily dismissed some of

Scheuing's claims because they were without merit or because they

simply failed to state a claim for relief. Some of Scheuing's claims,

however,

"were summarily dismissed based on defects in the pleadings

and application of the procedural bars in Rule 32.2, Ala. R.

Crim. P. When discussing the pleading requirements for

postconviction petitions, we have stated:

" 'The burden of pleading under Rule 32.3

and Rule 32.6(b) is a heavy one. Conclusions

unsupported by specific facts will not satisfy the

requirements of Rule 32.3 and Rule 32.6(b). The

full factual basis for the claim must be included in

the petition itself. If, assuming every factual

allegation in a Rule 32 petition to be true, a court

cannot determine whether the petitioner is

entitled to relief, the petitioner has not satisfied

the burden of pleading under Rule 32.3 and Rule

32.6(b). See Bracknell v. State, 883 So. 2d 724

(Ala. Crim. App. 2003).'

"Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).

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

itself disclose the facts relied upon in seeking

relief." Boyd v. State, 746 So. 2d 364, 406 (Ala.

Crim. App. 1999). In other words, it is not the

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

the petitioner to relief." Lancaster v. State, 638

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

allegation of facts in pleading which, if true, entitle

a petitioner to relief. After facts are pleaded,

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

petitioner is then entitled to an opportunity, as

provided under Rule 32.9, Ala. R. Crim. P., to

present evidence proving those alleged facts.'

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

'[T]he procedural bars of Rule 32[.2, Ala. R. Crim. P.,] apply

with equal force to all cases, including those in which the

death penalty has been imposed.' Burgess v. State, 962 So. 2d

272, 277 (Ala. Crim. App. 2005)."

Washington v. State, 95 So. 3d 26, 38-39 (Ala. Crim. App. 2012).

Furthermore, "the plain-error standard of review does not apply when an

appellate court is reviewing the denial of a postconviction petition

attacking a death sentence." James v. State, 61 So. 3d 357, 362 (Ala.

Crim. App. 2010) (citing Ex parte Dobyne, 805 So. 2d 763 (Ala. 2001)).

Before we turn to Scheuing's arguments on appeal, we note that the

Alabama Rules of Appellate Procedure are clear: in his or her brief to this

Court, an appellant must present this Court with an adequate argument

"containing the contentions of the appellant/petitioner with respect to the

issues presented, and the reasons therefor, with citations to the cases,

statutes, other authorities, and parts of the record relied on." Rule

28(a)(10), Ala. R. App. P. As the State points out in its brief to this Court,

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nowhere in Scheuing's brief to this Court does he actually address the

circuit court's reasons for dismissing the claims he raised in his Rule 32

petition.2 Instead, Scheuing merely restates the allegations that he

raised in his petition. We have held that,

"when a petitioner merely restates allegations that he or she

raised in a Rule 32 petition without explaining to this Court

how the circuit court erred by providing this Court with

citations to legal authority supporting those arguments, that

petitioner has not satisfied Rule 28(a)(10), Ala. R. App. P., and

his or her claims are deemed abandoned and waived. See,

e.g., Calhoun v. State, 261 So. 3d 457, 472-73 (Ala. Crim. App.

2016) (holding that Calhoun failed to 'adequately argue' his

claims on appeal because he 'merely restate[d] these

allegations from his petition,' argued that the allegations in

his petition showed that his counsel was ineffective, and failed

to cite 'legal authority to support these contentions')."

Travis v. State, [Ms. CR-18-0973, Mar. 24, 2023] ___ So. 3d ____, ____

(Ala. Crim. App. 2023). Although the State asserts on numerous

occasions in its brief on appeal that Scheuing has waived his arguments

by failing to comply with Rule 28(a)(10), Scheuing does not attempt to

contest these assertions by the State in his reply brief. We address

2Scheuing mentions the circuit court's order only once in his brief.

(See Scheuing's brief, p. 6 (noting in his "Statement of the Case" that the

circuit court dismissed his petition on April 1, 2022).)

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Scheuing's arguments on appeal including addressing when his claims

fail to satisfy Rule 28(a)(10), Ala. R. App. P.

Discussion

On appeal, Scheuing argues that his counsel were ineffective during

the guilt and penalty phases of his trial. (Scheuing's brief, pp. 9-51.)

Scheuing also argues that the trial court failed to find his "severe mental

illness as a mitigating circumstance and to consider other mental-health

evidence as mitigating" and that the trial court failed "to consider [his]

youth and undeveloped brain as nonstatutory mitigating factors when

weighing … the aggravating circumstances of the crime against [his]

mitigating circumstances." (Scheuing's brief, pp. 51-52.) Finally,

Scheuing raises claims concerning the application of the death penalty to

him. (Scheuing's brief, pp. 53-76.) We address each argument in turn.

I. Ineffective Assistance of Counsel

"As we have often stated:

" ' "To prevail on a claim of

ineffective assistance of counsel, the

petitioner must show (1) that counsel's

performance was deficient and (2) that

the petitioner was prejudiced by the

deficient performance. See Strickland

v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).

15

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" ' " 'Judicial scrutiny

of counsel's performance

must be highly deferential.

It is all too tempting for a

defendant to second-guess

counsel's assistance after

conviction or adverse

sentence, and it is all too

easy for a court, examining

counsel's defense after it

has proved unsuccessful, to

conclude that a particular

act or omission of counsel

was unreasonable. A fair

assessment of attorney

performance requires that

every effort be made to

eliminate the distorting

effects of hindsight, to

reconstruct the

circumstances of counsel's

challenged conduct, and to

evaluate the conduct from

counsel's perspective at the

time. Because of the

difficulties inherent in

making the evaluation, a

court must indulge a strong

presumption that counsel's

conduct falls within the

wide range of reasonable

professional assistance;

that is, the defendant must

overcome the presumption

that, under the

circumstances, the

challenged action "might be

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considered sound trial

strategy." There are

countless ways to provide

effective assistance in any

given case. Even the best

criminal defense attorneys

would not defend a

particular client in the

same way.'

" ' "Strickland, 466 U.S. at 689, 104 S.

Ct. 2052.

" ' " '[T]he purpose of

ineffectiveness review is not

to grade counsel's

performance. See

Strickland [v. Washington],

[466 U.S. 668,] 104 S. Ct.

[2052] at 2065 [80 L. Ed. 2d

674] [(1984)]; see also White

v. Singletary, 972 F.2d

1218, 1221 (11th Cir. 1992)

("We are not interested in

grading lawyers’

performances; we are

interested in whether the

adversarial process at trial,

in fact, worked

adequately."). We recognize

that "[r]epresentation is an

art, and an act or omission

that is unprofessional in

one case may be sound or

even brilliant in another."

Strickland, 104 S. Ct. at

2067. Different lawyers

have different gifts; this

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fact, as well as differing

circumstances from case to

case, means the range of

what might be a reasonable

approach at trial must be

broad. To state the obvious:

the trial lawyers, in every

case, could have done

something more or

something different. So,

omissions are inevitable.

But, the issue is not what is

possible or "what is prudent

or appropriate, but only

what is constitutionally

compelled." Burger v.

Kemp, 483 U.S. 776, 107 S.

Ct. 3114, 3126, 97 L. Ed. 2d

638 (1987).'

" ' "Chandler v. United States, 218 F.3d

1305, 1313-14 (11th Cir. 2000)

(footnotes omitted).

" ' "...."

" '....

" 'We also recognize that when reviewing

claims of ineffective assistance of counsel "the

performance and prejudice components of the

ineffectiveness inquiry are mixed questions of law

and fact." Strickland v. Washington, 466 U.S. 668,

698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).'

"Marshall v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App.

2014)."

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Peraita v. State, 386 So. 3d 799, 829-30 (Ala. Crim. App. 2021).

Additionally, when a Rule 32 petition alleges that counsel was ineffective,

that claim must be sufficiently pleaded. We have summarized the

pleading standard for such claims as follows:

" 'In Hyde v. State, 950 So. 2d 344 (Ala. Crim.

App. 2006), this Court explained ... :

" ' "The burden of pleading under

Rule 32.3 and Rule 32.6(b) is a heavy

one.... 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."

" '950 So. 2d at 356.'

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"Mashburn v. State, 148 So. 3d 1094, 1105-07 (Ala. Crim. App.

2013). Even if a claim of ineffective assistance of counsel is

sufficiently pleaded, however, counsel is not ineffective for

failing to raise a meritless claim. Carruth v. State, 165 So. 3d

627, 645 (Ala. Crim. App. 2014)."

Brooks v. State, 340 So. 3d 410, 442 (Ala. Crim. App. 2020). With these

principles in mind, we turn to Scheuing's claims of guilt-phase and

penalty-phase ineffective assistance of counsel.

I.A. Guilt-Phase Claims

I.A.1.

Scheuing first argues that his trial counsel were ineffective for

"fail[ing] to move for dismissal [of his case] based on speedy trial

grounds." (Scheuing's brief, p. 13.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective for failing "to move for dismissal [of his case] based on

speedy trial grounds." (C. 839.) Scheuing claimed that the 21-month

delay between his pretrial detention and his trial was presumptively

prejudicial; that the delay "was the result of actions taken by the

prosecution" and "[t]he prosecution never explained the delay"; that he

suffered prejudice because he experienced "stress and anxiety" during his

pretrial incarceration and "lost contact with close friends who comprised

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his support system," which, he says, "directly impacted his ability to

defend himself" and that, if his counsel had acted effectively, he would

have asserted his right to a speedy trial. (C. 840-41.) Scheuing also

alleged that he was prejudiced by his counsel's failure to move to dismiss

his case on speedy-trial grounds because, he said:

"Had trial counsel moved to dismiss the case, there is a

reasonable possibility that [he] would not have been convicted

and sentenced to death. As discussed above, [he] had a strong

case for dismissal based on speedy-trial grounds. If counsel

had filed the motion, the Court would have granted it, and

[he] would not have faced a trial, convictions, or a death

sentence."

(C. 842.)

The circuit court dismissed this claim, finding that "Scheuing

raised the issue underlying this ineffectiveness claim on direct appeal,

and the Alabama Court of Criminal Appeals held that 'Scheuing has

failed to establish that a violation of his right to a speedy trial occurred,

much less that the circuit court committed plain error by failing to notice

one.' " (C. 1221 (quoting Scheuing, 161 So. 3d at 291).) The circuit court

further found that, although a finding of no plain error on direct appeal

does not preclude Scheuing from arguing in his petition that his counsel's

failure prejudiced him, Scheuing failed to sufficiently plead his claim and

21

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failed "to plead any facts in his petition to dispute" this Court's holding

on direct appeal. (C. 1222.)

In his brief on appeal, Scheuing reasserts the claim he raised in his

petition without addressing the circuit court's basis for summarily

dismissing his claim or explaining how the circuit court's decision is

incorrect. Because Scheuing failed to present this Court with any

argument showing how the circuit court erred when it summarily

dismissed this claim of ineffective assistance of counsel, Scheuing's

argument on appeal does not comply with Rule 28(a)(10), Ala. R. App. P.,

and " 'constitute[s] a waiver of the underlying postconviction claim.' "

Wimbley v. State, 387 So. 3d 213, 231 (Ala. Crim. App. 2022) (quoting

Woodward v. State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018)).

Even if Scheuing had not waived this argument, the circuit court

properly dismissed this claim. As the circuit court explained in its order

dismissing Scheuing's petition, this Court, in Scheuing's direct appeal,

addressed the merits underlying his claim that his counsel were

ineffective for failing to move to dismiss his case on speedy-trial grounds.

In his direct appeal, Scheuing argued, just as he does in his third

amended petition, "that the 'delay of over 21 months in the prosecution

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of Mr. Scheuing denied him his right to a speedy trial.' " Scheuing, 161

So. 3d at 288. Scheuing claimed in his direct appeal that the length of

pretrial delay was presumptively prejudicial and that he suffered

prejudice from the delay because he had "suffered anxiety and emotional

stress." Id. at 288-91. This Court, reviewing his claim for plain error

under Rule 45A, Ala. R. App. P., examined the factors set out in Barker

v. Wingo, 407 U.S. 514 (1972), and rejected Scheuing's speedy-trial

argument.

This Court held that, contrary to Scheuing's argument on appeal, a

21-month delay in a capital-murder trial is not "presumptively

prejudicial." Scheuing, 161 So. 3d at 288 ("Although Scheuing argues

that the 21-month delay between his arrest and the beginning of his trial

is presumptively prejudicial, this Court does not agree."). Thus, there

was no violation of Scheuing's right to a speedy trial. This Court

nonetheless addressed the remaining Barker factors and held that the

record showed that the 21-month delay "was neither deliberately nor

negligently caused by the State"; that Scheuing never asserted his right

to a speedy trial; and that, "[a]lthough Scheuing asserts that, due to the

delay, 'he suffered from anxiety and emotional stress' …, no evidence

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supporting that assertion appears in the record" and, thus, he "failed to

establish prejudice as a result of any delay." Id. Ultimately, this Court

concluded that "Scheuing has failed to establish that a violation of his

right to a speedy trial occurred, much less that the circuit court

committed plain error by failing to notice one." Id. at 291. In other words,

this Court held that there was no error, much less plain error, resulting

from the delay between Scheuing's arrest and his trial.

Because this Court held in Scheuing's direct appeal that a 21-

month delay between an arrest and a trial in a capital-murder case is not

presumptively prejudicial, and, that if it were, the remaining Barker

factors do not establish a speedy-trial violation, the circuit court did not

err when it summarily dismissed this claim. See, e.g., Carruth v. State,

165 So. 3d 627, 645 (Ala. Crim. App. 2014) (holding that counsel "were

not ineffective for failing to raise a baseless objection").

I.A.2.

Next, Scheuing argues that his counsel were ineffective for "fail[ing]

to challenge for cause jurors who testified that they could not give

undivided attention to [his] trial proceedings." (Scheuing's brief, p. 14.)

24

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In his third amended petition, Scheuing raised this same claim and

specifically asserted that veniremembers C.W. and M.Z. both "indicated

that they would not be able to give their complete attention to the

evidence offered in this capital case," that his trial counsel "did not move

to strike either veniremember for cause," and that both C.W. and M.Z.

"ended up serving on the jury." (C. 842-43.)

The circuit court summarily dismissed Scheuing's claim for two

reasons. First, the circuit court found that Scheuing had argued in his

direct appeal that "the circuit court erred by failing to sua sponte remove

veniremembers C.W. and M.Z." and this Court held

"that the statutory grounds for which a veniremember may be

struck for cause 'do not include a juror who would not be able

to give his complete attention to the trial' and that '[t]he

veniremember's responses do not appear to rise to the level of

a strike for cause, and the circuit court did not commit plain

error by failing to remove them without any motion from

defense counsel.' "

(C. 1223-24.) The circuit court held that, because "the veniremembers'

responses would not have supported a challenge for cause, Scheuing's

trial counsel were not ineffective for failing to make one." (C. 1224.)

Second, the circuit court found that Scheuing's claim that C.W. and

M.Z. both had served on his jury was "directly refuted by the record"

25

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because the "State used its sixth peremptory strike to remove M.Z. from

the jury, and … Scheuing's trial counsel used its twelfth peremptory

strike to remove C.W. from the jury." (C. 1224 (citations omitted).) The

circuit court held that, because "the record proves that neither C.W. nor

M.Z. actually served on the jury, Scheuing cannot prove that his counsel's

performance was deficient and that he was prejudiced by his counsel's

failure to request that they be struck for cause." (C. 1224.)

The totality of Scheuing's argument on appeal is as follows:

"During voir dire, veniremembers C.W. and M.Z. both

responded affirmatively to the following inquiry:

" 'You may be sitting here thinking, hey,

what's happening with my business or my family

or any other number of issues. And you may not

be able to give me or the defense your complete

attention. I won't ask you why, but is there

anybody that fits that category, there's other

things that you need to be doing other than sitting

here?'

"(R. 405.)

"Even though they indicated that they would not be able

to give their complete attention to the evidence offered in this

capital case, defense counsel did not move to strike either

veniremember for cause. Both veniremembers served on the

jury. Applicable professional standards also reinforce trial

counsel's obligation to strike 'prospective jurors who are

unable to give meaningful consideration' to the evidence

presented at trial. ABA Guideline 10.10.2.

26

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"A criminal defendant in a jury trial is entitled to a fair

and impartial jury. (Morgan v. Illinois, 504 U.S. 719 (1992),

Duncan v. Louisiana, 391 U.S. 145 (1968).), see also Irvin v.

Dowd, 366 U.S. 717, 722 (1961)."

(Scheuing's brief, pp. 14-15.)

In making his argument on appeal, Scheuing merely reiterates the

claim he raised in his amended Rule 32 petition without addressing the

circuit court's judgment or explaining how the circuit court erred when it

dismissed this claim and ignoring the circuit court's finding that M.Z. and

C.W. did not serve on the jury. In fact, as the State correctly points out

in its brief on appeal, Scheuing "does not even mention the court's final

order ... or cite this Court to the portion of the appellate record where the

court addressed this claim." (State's brief, p. 12.) Again, this Court has

held that similar failures of argument render an appellate brief

noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward v.

State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018) (holding that

Woodward's argument on appeal did not satisfy Rule 28(a)(10), Ala. R.

App. P., and was, therefore, deemed waived when he "reassert[ed] this

claim from his petition, but he ma[de] no argument regarding why he

27

CR-2022-0684

believe[d] the circuit court's findings were incorrect"). Because

Scheuing's argument does not comply with Rule 28(a)(10), Ala. R. App.

P., he has waived his argument.

Even if Scheuing had not waived this claim, however, the circuit

court properly dismissed this claim. As the circuit court noted in its order

dismissing this claim, this Court in Scheuing's direct appeal concluded

that neither C.W.'s nor M.Z.'s responses during voir dire "rise to the level

of a strike for cause, and the circuit court did not commit plain error by

failing to remove them without any motion from defense counsel."

Scheuing, 161 So. 3d at 291. Although " 'a determination on direct appeal

that there has been no plain error does not automatically foreclose a

determination of the existence of the prejudice required under Strickland

to sustain a claim of ineffective assistance of counsel,' " "it is 'the rare case

in which the application of the plain-error test and the prejudice prong of

the Strickland test will result in different outcomes.' " Bohannon v. State,

[Ms. CR-21-0148, Aug. 18, 2023] ___ So. 3d ___, ___ (Ala. Crim. App. 2023)

(quoting Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005)). Although

Scheuing alleged that his counsel were ineffective for failing to move to

strike for cause C.W. and M.Z., Scheuing failed to plead any facts in his

28

CR-2022-0684

petition to dispute this Court's holding on direct appeal that their

responses did not rise to the level to support a strike for cause; thus, he

failed to show why this claim was one of the "rare" claims mentioned in

Ex parte Taylor, supra, where the application of the plain-error standard

and the prejudice prong of Strickland will result in different outcomes.

On appeal, he also failed to challenge the trial court's finding that neither

of the complained-of prospective jurors served on the jury. If neither of

the individuals served on the jury then Scheuing would be unable to

establish any prejudice. Thus, the circuit court properly dismissed this

claim, and Scheuing is not entitled to relief on this claim.

I.A.3.

Scheuing argues that his counsel were ineffective for "fail[ing] to

challenge the prosecution's discriminatory peremptory strikes during

jury selection" when the prosecution "improperly struck a

disproportionate number of female venire members in violation of J.E.B.

v. Alabama, 511 U.S. 127 (1994)." (Scheuing's brief, p. 15.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective for failing to raise an objection under J.E.B. v. Alabama,

511 U.S. 127 (1994), because, he said, the State "used sixty-eight percent

29

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of its peremptory strikes to remove female veniremembers from the jury,"

"the group of women struck shared only their gender in common," and

"the disparate treatment of men and women on the venire gave rise to an

inference of discrimination." (C. 844-45.)

The circuit court summarily dismissed this claim because

"Scheuing raised the issue underlying this ineffectiveness claim on direct

appeal, and the Court of Criminal Appeals held that, under the

circumstances, 'this Court cannot say that the State's use of 23 of 34

peremptory strikes to remove female veniremembers raises an inference

of discrimination.' " (C. 1225.) The circuit court also found that Scheuing

failed "to plead any specific facts in his petition that would call the Court

of Criminal Appeals' holding into question." (C. 1225.)

The totality of Scheuing's argument on appeal is as follows:

"During the culpability phase, the State improperly

struck a disproportionate number of female venire members

in violation of J.E.B. v. Alabama, 511 U.S. 127 (1994). Where

the Record establishes a prima facie showing of gender

discrimination, a hearing must be held, and the prosecution

must provide gender-neutral reasons for the strikes. See ibid;

Ex parte Trawick, 698 So. 2d 162, 167-68 (Ala. 1997)

(relevant factors to establish a prima facie case under Batson

[v. Kentucky, 476 U.S. 79 (1986),] apply to claims of gender

discrimination). No hearing was held because trial counsel

failed to object. He lifted the burden from the state to present

30

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gender-neutral reasons for its peremptory strikes. Eagle v.

Linahan, 279 F.3d 926 (11th Cir. 2001).

"Here, the prosecution used sixty-eight percent of its

peremptory strikes to remove female veniremembers from the

jury, resulting in a jury that was thirty-three percent female

despite women comprising nearly half the venire. This alone

provided grounds for counsel to object based on an inference

of discrimination. See Davis v. Ayala, 135 U.S. 2187, 2200-01

(2015), Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005); see

also Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987) (use of

67% of peremptory strikes against a particular group could

raise an inference of discrimination). Trial counsel’s failure

to object constituted ineffectiveness in light of the State's

intentional attempt to circumvent Mr. Scheuing's

constitutional rights."

(Scheuing's brief, pp. 15-16.)

Scheuing merely recites the claim he raised in his amended Rule 32

petition without addressing the circuit court's judgment or explaining

how the circuit court erred when it dismissed his claim. Again, Scheuing

"does not even mention the court's final order ... or cite this Court to the

portion of the appellate record where the court addressed this claim."

(State's brief, p. 14.)

As the circuit court correctly noted in its dismissal of Scheuing's

claim, this Court addressed the substantive issue underlying Scheuing's

claim of ineffective assistance of counsel and held that Scheuing was "not

entitle[d] … to any relief" on his J.E.B. claim because "this Court cannot

31

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say that the State's use of 23 of its 34 peremptory strikes raises an

inference of discrimination"; because Scheuing "has not established that

the women struck by the State were heterogeneous"; and because he

"failed to establish that the State treated men and women differently."

Scheuing, 161 So. 3d at 285-87. Because this Court in Scheuing's direct

appeal concluded that the exact arguments he says his counsel were

ineffective for failing to raise at trial do "not raise an inference that the

State used its peremptory strikes in a manner that discriminated against

women," id., Scheuing's claim of ineffective assistance of counsel is

without merit. Scheuing continues to rely upon an assertion that the

percentage of women struck by the State was higher than the percentage

of women in the venire, but "[t]his Court has repeatedly held that a prima

facie case of discrimination under Batson [and J.E.B.] cannot be

established on numbers alone." Largin v. State, [Ms. CR-20-0228, Dec.

16, 2022] ___ So. 3d ___, ___ (Ala. Crim. App. 2022).

Based on the foregoing, the circuit court did not err when it

summarily dismissed this claim.

32

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I.A.4.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the State's characterization that it was representing the victim

and his family, which it repeated throughout the proceedings."

(Scheuing's brief, p. 16.)

In his third amended petition, Scheuing alleged that "throughout

the proceedings" the State "repeatedly mischaracterized its role and the

nature of the proceedings by asserting that it represented the victim,"

and his counsel failed to object to the State's "improper assertions." (C.

850.) Specifically, Scheuing alleged that the State made such an

improper assertion on three occasions: (1) during voir dire when it told a

jury panel that it "represent[s] the victims, Sean Cook and Jacqueline

Williams" (Record in CR-10-1454, R. 220); (2) during voir dire when it

told a different jury panel that it "represent[s] Sean Cook who can't be

here because he's dead" and that it is "his voice and [it's] going to

represent him throughout this trial" (Record in CR-10-1454, R. 294); and

(3) during voir dire when it told yet another jury panel that it

"represent[s] Sean Cook. And he's dead, and he can't be here

today. So I'm going to ask every question I can legally ask to

find out everything I can find out about you so that when I put

you in the box I can assure his mom that he's going to get a

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fair trial, that his alleged murderer is going to have a fair jury

listening to the evidence."

(Record in CR-10-1454, R. 381.) Scheuing claimed that he was prejudiced

by his counsel's failure to object to the complained-of statements because

the "statements were highly prejudicial" and

"gave the jury an inaccurate perception of the prosecution's

relationship to the victim, coloring with improper sympathies

and passions the lens through which the jury viewed all

aspects of the trial. Had trial counsel objected, the trial court

would have prevented the prosecution from misrepresenting

its role, and the prosecution would have been a normal

litigant instead of a member of the victim's legal team. The

jury would have viewed the case without the improper

sympathies and passions associated with a victim; it would

have been a detached, neutral decisionmaker instead. Given

the dearth of information about [his] horrible childhood and

the resulting mental-health problems that ensued, there is a

reasonable likelihood that a detached, neutral decisionmaker

would not have convicted him of capital murder or sentenced

him to death."

(C. 851.)

The circuit court dismissed this claim because "he raised this

underlying claim on direct appeal, and the Alabama Court of Criminal

Appeals held that 'the record demonstrates that the prosecutor's

references to representing and speaking for the victims were limited and

brief' "; thus, this Court held " 'that the prosecutor's comments did not rise

to the level of plain error.' " (C. 1161 (quoting Scheuing, 161 So. 3d at

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287-88).) The circuit court, while acknowledging that "a finding of no

plain error on direct appeal does not foreclose Scheuing from arguing that

he was prejudiced by his trial counsel's failure to object to the prosecutor's

comments," concluded that "Scheuing failed to plead any specific facts in

his petition that, if true, would establish that his is a 'rare case.' " (C.

1161-62.)

On appeal, Scheuing does not challenge the circuit court's

judgment. Rather, Scheuing's two-paragraph argument consists of a

restatement of the allegations he raised in his petition with citations to

two cases -- one being a citation to a concurring opinion -- that notes that

a prosecutor represents the sovereign and not a party. (Scheuing's brief,

pp. 16-17.) Like previous claims addressed above, Scheuing does not

mention the circuit court's order as to this claim, nor does he make any

argument as to why the circuit court erred when it summarily dismissed

this claim. Again, this Court has held that similar failures of argument

do not comply with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746 (holding that Woodward's argument on appeal did not

satisfy Rule 28(a)(10), Ala. R. App. P., and was, therefore, deemed waived

35

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when he "reassert[ed] this claim from his petition, but he ma[de] no

argument regarding why he believe[d] the circuit court's findings were

incorrect"). Furthermore, Scheuing cites caselaw indicating that

prosecutors represent the State, not the individual, but he does not

provide this Court with argument that the assertions of the prosecutor

were overarching during the trial or any caselaw indicating that the

assertions in this case were sufficiently prejudicial to warrant relief.

Because Scheuing's argument does not comply with Rule 28(a)(10), Ala.

R. App. P., he has waived his argument.

Even had the argument not been waived, his claim is without merit.

As the circuit court explained in its order dismissing this claim, this

Court, on direct appeal, addressed the same complained-of comments

underlying Scheuing's claim of ineffective assistance of counsel as

follows:

"In Johnson v. State, 120 So. 3d 1130 (Ala. Crim. App.

2009), this Court addressed a similar argument and stated:

" 'This Court has held that a prosecutor's

comments that he or she represented or spoke for

the victim's family is not erroneous. "We have held

that it is not reversible error for a prosecutor to

suggest that he is speaking on behalf of the

victim's family. See Slaton v. State, 680 So. 2d

879, 906-07 (Ala. Crim. App. 1995), aff'd, 680 So.

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CR-2022-0684

2d 909 (Ala. 1996), cert. denied, 519 U.S. 1079, 117

S. Ct. 742, 136 L. Ed. 2d 680 (1997)." Burgess v.

State, 723 So. 2d [742] at 754 [(Ala. Crim. App.

1997)].'

"Johnson, 120 So. 3d at 1190. In Slaton, this Court instructed

that it is not 'reversible error when the prosecutor briefly

suggests that he is speaking on behalf of the victim's family.'

Slaton v. State, 680 So. 2d 879, 906 (Ala. Crim. App. 1995)

(citing Henderson v. State, 583 So. 2d 276, 286 (Ala. Crim.

App. 1990)).

"In this case, the record demonstrates that the

prosecutor's references to representing and speaking for the

victims were limited and brief. This Court, therefore, holds

that the prosecutor's comments did not rise to the level of

plain error. See Rule 45A, Ala. R. App. P."

Scheuing, 161 So. 3d at 287-88.

Although this Court reviewed Scheuing's argument for plain error

and held that Scheuing's claim did not rise of the level of plain error, this

Court has held:

" '[A] determination on direct appeal that there has been

no plain error does not automatically foreclose a

determination of the existence of the prejudice required under

Strickland to sustain a claim of ineffective assistance of

counsel.' Ex parte Taylor, 10 So. 3d 1075, 1078 (Ala. 2005).

However, it is 'the rare case in which the application of the

plain-error test and the prejudice prong of the Strickland test

will result in different outcomes,' Ex parte Taylor, 10 So. 3d

at 1078, and this is not such a case."

Bohannon, ___ So. 3d at ____.

37

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As this Court noted in Scheuing's direct appeal, the prosecutor's

comments during voir dire were "limited and brief," and such comments

are simply not reversible error. Thus, there was no basis for Scheuing's

counsel to object to the complained-of comments because an objection

would have been baseless. What is more, as the circuit court noted in its

order dismissing this claim, Scheuing failed to plead any facts showing

that this claim was one of the "rare" claims mentioned in Ex parte Taylor,

supra, where the application of the plain-error standard and the

prejudice prong of Strickland will result in different outcomes.

I.A.5.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate and present a defense during the culpability

phase of [his] trial." (Scheuing's brief, p. 17.)

In his third amended petition, Scheuing alleged that his trial

counsel "were deficient for failing to investigate the reasons that [he]

committed the murder and ensured that he would be convicted." (C. 853.)

According to Scheuing, Potts and Kulp "wanted to break away from their

lives of drugs and crime to start a normal family" and they "needed help."

(C. 853-54.) Scheuing alleged that Potts and Kulp had "tried to distribute

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'crystal meth' and incurred a large debt to" Cook and that Cook "would

not give the couple any more time to pay." (C. 854.) Scheuing said that

he agreed to take on the couple's debt himself but he "could not make the

money needed to pay the debt either." (C. 854.) So, he said, he "went to

talk with Mr. Cook again, hoping that he would agree to more-reasonable

repayment terms," but "Cook did not, so Mr. Scheuing shot him." (C.

854.) Scheuing alleged that, "to protect" Potts, "[h]e took the cash

register to make it look like an open-and-shut murder during the course

of a robbery" and "gave the money to the new family as a wedding gift

and assured them that he would confess that he did it for a robbery if

caught." (C. 854.) Scheuing alleged that his counsel "had no reasonable

excuse to not investigate these details." (C. 855.) As for prejudice,

Scheuing claimed that if "the jury understood the true reasons that [he]

killed Mr. Cook and later confessed to it, they may have spent more than

twenty-nine minutes deliberating his guilt." (C. 855.)

The circuit court summarily dismissed this claim as insufficiently

pleaded, finding:

"First, Scheuing fails to assert in his petition that he

ever told his trial counsel that his motive for murdering the

victim was to help his co-defendants and not robbery. As

such, Scheuing's counsel had no reason to think that his

39

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motive for killing the victim was anything other than robbery.

See James v. State, 61 So. 3d 357, 366 (Ala. Crim. App. 2010)

(holding that James's trial counsel were not ineffective for

failing to pursue a claim of self-defense because 'counsel had

no reason to believe that the shooting was in self-defense

because James did not tell his attorneys that he acted in self-

defense').

"....

"Second, Scheuing failed to proffer in his petition what

legal evidence his trial counsel could have presented during

the guilt phase of trial to prove his murdering the victim was

motivated by his desire to help his friends and not robbery.

Even if Scheuing had proffered such evidence in his petition,

he failed to state any rational reason why his counsel's

performance would have been deficient and prejudicial

because they did not present evidence showing that he

murdered the victim because he would not agree to better

terms for repaying a drug debt."

(C. 1228-29.)

On appeal, Scheuing merely repeats the allegations he made in his

petition without mentioning the circuit court's final order as to this claim

and without making any argument as to why the circuit court erred when

it summarily dismissed as insufficiently pleaded. Again, this Court has

held that similar failures of argument render an appellate brief

noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a

waiver of the underlying postconviction claim. See, e.g., Woodward, 276

So. 3d at 746 (holding that Woodward's argument on appeal did not

40

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satisfy Rule 28(a)(10), and was, therefore, deemed waived when he

"reassert[ed] this claim from his petition, but he ma[de] no argument

regarding why he believe[d] the circuit court's findings were incorrect").

Furthermore, Scheuing's argument to this Court included the vague

assertion that his counsel should have interviewed "virtually everyone,"

and the only authority he cites stands only for the general proposition

that counsel is required to investigate the case. Because Scheuing's

argument does not comply with Rule 28(a)(10), he has waived his

argument.

Even so, the circuit court correctly concluded that Scheuing's claim

was insufficiently pleaded. This Court has held that

" '[w]hile counsel has a duty to investigate in an attempt to

locate evidence favorable to the defendant, "this duty only

requires a reasonable investigation." Singleton v. Thigpen,

847 F.2d 668, 669 (11th Cir. (Ala.) 1988), cert. denied, 488

U.S. 1019, 109 S. Ct. 822, 102 L. Ed. 2d 812 (1989) (emphasis

added). See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066;

Morrison v. State, 551 So. 2d 435 (Ala. Cr. App. 1989), cert.

denied, 495 U.S. 911, 110 S. Ct. 1938, 109 L. Ed. 2d 301

(1990). Counsel's obligation is to conduct a "substantial

investigation into each of the plausible lines of defense."

Strickland, 466 U.S. at 681, 104 S. Ct. at 2061 (emphasis

added). "A substantial investigation is just what the term

implies; it does not demand that counsel discover every shred

of evidence but that a reasonable inquiry into all plausible

defenses be made." Id., 466 U.S. at 686, 104 S. Ct. at 2063.' "

41

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Broadnax v. State, 130 So. 3d 1232, 1247-48 (Ala. Crim. App. 2013)

(quoting Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999)).

Furthermore,

" '[t]he reasonableness of counsel's actions may be

determined or substantially influenced by the defendant's

own statements or actions. Counsel's actions are usually

based, quite properly, on informed strategic choices made by

the defendant and on information supplied by the defendant.

In particular, what investigation decisions are reasonable

depends critically on such information. For example, when

the facts that support a certain potential line of defense are

generally known to counsel because of what the defendant has

said, the need for further investigation may be considerably

diminished or eliminated altogether. And when a defendant

has given counsel reason to believe that pursuing certain

investigations would be fruitless or even harmful, counsel's

failure to pursue those investigations may not later be

challenged as unreasonable. In short, inquiry into counsel's

conversations with the defendant may be critical to a proper

assessment of counsel's investigation decisions, just as it may

be critical to a proper assessment of counsel's other litigation

decisions. See United States v. Decoster, [199 U.S. App. D.C.

359,] 372-373, 624 F.2d [196,] 209-210 [ (D.C.1976) ].' "

Broadnax, 130 So. 3d at 1248 (quoting Strickland, 466 U.S. at 691, 104

S. Ct. 2052) (emphasis added).

Here, although Scheuing alleged in his amended petition an

alternative reason as to why he shot and killed Cook, Scheuing failed to

allege either that he told his trial counsel about his "real" reason for

killing Cook or precisely why his counsel should have investigated this

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alternative motive for killing Cook when Scheuing told the police that he

planned to commit a robbery to get money to buy Potts an Xbox 360 and

to get money that he could use to go to Michigan. Although the

information that Scheuing argues should have been presented by his trial

counsel appears to have been known by Potts and Kulp, Scheuing failed

to specifically plead which witnesses would have been revealed though

an "adequate" investigation and whether those witnesses would have

been available to testify at the time of Scheuing's trial. Because Scheuing

failed to allege these facts in his petition, the circuit court did not err

when it summarily dismissed this claim as insufficiently pleaded.

I.A.6.

Scheuing argues that his counsel were ineffective for "fail[ing] to

prevent the introduction of inflammatory victim-impact evidence in the

[guilt] phase." (Scheuing's brief, p. 19.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to "highly inflammatory victim-

impact evidence during the guilt phase" from Cook's mother, Elaine

Dockery. (C. 856.) Scheuing claimed that Dockery provided "an overview

of Sean Cook's life, explaining the circumstances of his birth, the family's

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experiences relocating, Mr. Cook's employment history, his living

situation, and the fact that he was caring for his mother at the time of

his death." (C. 856.) Scheuing further claimed that Dockery also testified

to "the circumstances surrounding [her] discovery of her son's death and

the moment she realized that he was no longer alive, as well as the

impact the death had on her life." (C. 856.) Scheuing also claimed that

the State "highlighted this evidence and encouraged the jury to consider

the emotional impact of the offense of the victim's mother as evidence

that Mr. Scheuing was guilty of capital murder." (C. 857.) Scheuing said

that if his "counsel objected to the improper admission of victim-impact

testimony there is a reasonable probability that [the trial court] would

have excluded it and that the jury would have reached different verdicts

in the culpability stage." (C. 859.)

The circuit court summarily dismissed this claim because Scheuing

had "raised the issue underlying this ineffectiveness claim on direct

appeal," and this Court "held that the victim's mother's testimony ' "did

not affect the outcome of the trial, that it did not prejudice [Scheuing's]

substantial rights, and that it did not rise to the level of plain error." '

Scheuing, 161 So. 3d at 265 (citation omitted)." (C. 1229.) The circuit

44

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court, noting "that a finding of plain error on direct appeal does not

foreclose Scheuing from arguing that he was prejudiced by his trial

counsel's failure to object to certain testimony from the victim's mother,"

found that "Scheuing failed to plead any specific facts in his petition that,

if true, would establish that his is a 'rare case' " where the application of

the plain-error standard and the prejudice prong of Strickland will result

in different outcomes. (C. 1230.)

As the circuit court explained, this Court, in Scheuing's direct

appeal, addressed the claim underlying this claim of ineffective

assistance of counsel and held:

" 'The Alabama Supreme Court has held that

victim-impact statements:

" ' "are admissible during the guilt

phase of a criminal trial only if the

statements are relevant to a material

issue of the guilt phase. Testimony

that has no probative value on any

material question of fact or inquiry is

inadmissible. See C. Gamble,

McElroy's Alabama Evidence § 21.01

(4th ed. 1991), citing, inter alia,

Fincher v. State, 58 Ala. 215 (1877) (a

fact that is incapable of affording any

reasonable inference in reference to a

material fact or inquiry involved in the

issue cannot be given in evidence). If

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the statements are not material and

relevant, they are not admissible."

" 'Ex parte Crymes, 630 So. 2d 125, 126 (Ala. 1993).

" ' "[T]he introduction of victim impact

evidence during the guilt phase of a capital murder

trial can result in reversible error if the record

indicates that it probably distracted the jury and

kept it from performing its duty of determining the

guilt or innocence of the defendant based on the

admissible evidence and the applicable law." Ex

parte Rieber, 663 So. 2d 999, 1006 (Ala. 1995). The

Court in Ex parte Rieber also said:

" ' "However, in Ex parte Crymes,

630 So. 2d 125 (Ala. 1993), a plurality

of this Court held in a capital murder

case in which the defendant was

sentenced to life imprisonment without

parole that a judgment of conviction

can be upheld if the record conclusively

shows that the admission of the victim

impact evidence during the guilt phase

of the trial did not affect the outcome of

the trial or otherwise prejudice a

substantial right of the defendant."

" '663 So. 2d at 1005.'

"Woodward v. State, 123 So. 3d 989, 1021 (Ala. Crim. App.

2011).

"The appellant in Woodward argued that much of the

testimony of the victim's widow regarding the victim was

improper victim-impact evidence. Id. at 1020. In reviewing

the record under the plain-error standard, this Court agreed

that some of the testimony about which Woodward

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complained was irrelevant and inadmissible. That evidence

consisted of testimony about where and how the widow and

victim met, that the victim, on the day he was shot, joked

about an exercise machine he had recently purchased, that

the victim had regularly donated plasma, and that the victim

and the widow 'both had a policy to give of themselves to

others.' Id. at 1021. This Court concluded, however, 'that the

irrelevant portions of [the victim's widow's] testimony did not

operate to deny Woodward a fair trial or otherwise prejudice

a substantial right of Woodward's' and 'that it did not affect

the outcome of the trial, that it did not prejudice Woodward's

substantial rights, and that it did not rise to the level of plain

error.' Id. at 1022.

"During the guilt phase of the trial, the only potential

prejudice Scheuing could have faced from Dockery's testimony

would have been the jury's relying on that testimony to find

him guilty. When compared with the defense strategy, which

was to admit guilt and focus on a favorable sentencing

recommendation, this Court concludes that Dockery's

testimony 'did not affect the outcome of the trial, that it did

not prejudice [Scheuing's] substantial rights, and that it did

not rise to the level of plain error.' Id. at 1022."

Scheuing, 161 So. 3d at 264-65 (emphasis added).

Although " 'a determination on direct appeal that there has been no

plain error does not automatically foreclose a determination of the

existence of the prejudice required under Strickland to sustain a claim of

ineffective assistance of counsel,' " "it is 'the rare case in which the

application of the plain-error test and the prejudice prong of the

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Strickland test will result in different outcomes.' " Bohannon, ___ So. 3d

at ____ (quoting Ex parte Taylor, 10 So. 3d at 1078).

As this Court noted in Scheuing's direct appeal, the only "potential

prejudice" Scheuing could have suffered from Dockery's testimony was

the jury finding him guilty of capital murder based on that testimony.

But, "in light of Scheuing's defense strategy to admit guilt and to focus

on sentencing," he cannot show that he was prejudiced by the admission

of Dockery's testimony. Scheuing, 161 So. 3d at 281. As the circuit court

noted in its order dismissing this claim of ineffective assistance of

counsel, Scheuing failed to plead any facts showing that he was

prejudiced by Dockery's testimony, and, thus, he failed to show why this

claim was one of the "rare" claims in which prejudice can be found in a

petition for relief filed pursuant to Rule 32, Ala. R. Crim. P., after this

Court has found on direct appeal that no plain error occurred on the

underlying claim. Thus, the circuit court properly dismissed this claim.

I.A.7.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the prosecution's improper assertion that [he] lacked remorse

for the offense at the [guilt] phase." (Scheuing's brief, p. 21.) The totality

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of Scheuing's argument on appeal is as follows: "Counsel were ineffective

for failing to object to the prosecution's unfounded factual assertion that

Mr. Scheuing lacked remorse for his prior murder conviction."

(Scheuing's brief, p. 21.) Scheuing's one-sentence argument on appeal

falls well short of satisfying the requirements of Rule 28(a)(10), Ala. R.

App. P. Because Scheuing makes no argument and cites no authority as

to this claim of ineffective assistance of counsel, Scheuing has waived and

abandoned this argument on appeal, and we will not address it. See

Washington v. State, 95 So. 3d 26, 75 (Ala. Crim. App. 2012) (holding that

Washington's failure to comply with Rule 28(a)(10), resulted in his waiver

of his argument on appeal).

I.A.8.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately explain [to the jury his] statements to authorities."

(Scheuing's brief, p. 21.) The totality of Scheuing's argument on appeal

is as follows:

"Counsel should have moved to suppress Mr. Scheuing’s

statements to law enforcement. [Kimmelman v.] Morrison,

477 U.S. [365,] 374-75 [(1986)]. Counsel's performance in this

respect was deficient under Strickland v. Washington. As

discussed above, Mr. Scheuing gave false confessions to law

enforcement during the investigation of this case. He did so

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because he wanted to protect his friend James Potts. Mr.

Scheuing believed that he had nothing in life and that Mr.

Potts had a family and a future. So Mr. Scheuing decided to

fall on his proverbial sword to protect his friends.

"Had trial counsel properly investigated the

circumstances of Mr. Scheuing's crime, they would have

known that his confessions were filled with inaccuracies.

That he had confessed to a robbery that never occurred. He

was negotiating with a drug dealer and things went sour. He

then killed him."

(Scheuing's brief, p. 22.)

Scheuing's two-paragraph argument does not satisfy Rule

28(a)(10), Ala. R. App. P., which, again, requires that an argument set

out "the contentions of the appellant/petitioner with respect to the issues

presented, and the reasons therefor, with citations to the cases, statutes,

other authorities, and parts of the record relied on." Scheuing makes no

argument concerning the circuit court's judgment as to this claim of

ineffective assistance of counsel. What is more, Scheuing cites only

general propositions of law to support his claim that his counsel were

ineffective, and he does not cite any portions of the record concerning this

claim. He states that his counsel should have "moved to suppress" his

statement but gives no grounds for suppression. Thus, Scheuing has

waived this argument on appeal, and we will not address it. See

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Washington, 95 So. 3d at 75 (holding that Washington's failure to comply

with Rule 28(a)(10) resulted in his waiver of his argument on appeal).

I.A.9.

Scheuing argues that his counsel were ineffective for "[f]ail[ing] to

object to an unqualified fact witness lifting fingerprints and then

testifying that they match without any meaningful foundation or being

qualified as an expert in fingerprint analysis." (Scheuing's brief, p. 22.)

In his third amended petition, Scheuing alleged that his trial

counsel were ineffective during the guilt phase of his trial when they

failed to object to testimony from Officer Bobby Yancey. According to

Scheuing:

"During [his] culpability phase, the prosecution matched

his fingerprints to latent prints lifted from physical evidence

through the same fact witness: the lead investigating officer

Bobby Yancey. Officer Yancey was qualified as an expert 'in

the area of processing fingerprints.' (R. 835.) He was not

qualified as an expert in matching prints. Nevertheless, the

investigating officer who lifted the latent prints opined that

they matched Mr. Scheuing's prints. (R. 839.) Officer Yancey

did not provide a basis for this expert opinion aside from

saying that grooves and ridges matched. (R. 836-40.)"

(C. 864-65.) Scheuing claimed that his counsel's failure to object to

Officer Yancey's testimony was "unmistakably prejudicial" because, he

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argues, "that fabricated 'match' was an unscientific attempt to connect

Mr. Scheuing to the crime under the guise of science." (R. 866-67.)

The circuit court dismissed this claim as without merit, finding:

"Officer Yancey testified that he was certified in basic

and advanced latent fingerprint investigation and

examination. (R. 834.) Based on his qualifications, the circuit

court permitted Officer Yancey to testify as an expert in

fingerprint processing. (R. 835.) Since the court concluded

that the State had established that Officer Yancey was an

expert in fingerprint analysis, Scheuing's trial counsel had no

legitimate ground to object and, therefore, were not ineffective

for failing to do so. See Magwood v. State, 689 So. 2d 959, 981

(Ala. Crim. App. 1996) ('Counsel cannot be held ineffective for

failing to make a challenge that has no basis in law or fact.')."

(C. 1234.)

As the circuit court correctly found, Scheuing's counsel had no basis

to object to Officer Yancey's expert opinion as to Scheuing's fingerprints

matching those found at the crime scene because Officer Yancey testified

that he was qualified and trained both to collect and to process

fingerprints and that he was "certified in basic and advanced latent

fingerprint investigation and examination along with palm prints."

(Record in CR-10-1454, R. 834 (emphasis added).) The circuit court

qualified him as an expert in "the area of fingerprint processing," which

would include all aspects of processing fingerprint evidence such as

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fingerprint comparisons. So, as the circuit court found, "Scheuing's trial

counsel had no legitimate ground to object and, therefore, were not

ineffective for failing to do so. See Magwood v. State, 689 So. 2d 959, 981

(Ala. Crim. App. 1996) ('Counsel cannot be held ineffective for failing to

make a challenge that has no basis in law or fact.')." (C. 1234.)

What is more, even assuming that his counsel should have objected

to Officer Yancey's testimony, Scheuing failed to sufficiently plead facts

showing how he was prejudiced by his counsel's alleged deficient

performance. Although Scheuing claimed in his petition that the

"fingerprints directly tied [him] to the murder with 'science,' so counsel's

failure to object prejudiced him," (C. 867), Scheuing does not explain why

being tied to the crime scene by fingerprint evidence mattered in light of

his statement to law enforcement admitting to committing a robbery at

the Pak-a-Sak store. His argument that prints placing Scheuing at the

scene prejudiced him is also inconsistent with Scheuing's argument that

his counsel should have agreed that Scheuing killed Cook, but that they

should have provided a different theory as to why he killed Cook.

Because Scheuing's counsel had no basis for an objection to Officer

Yancey's testimony and because, even if he had, he failed to sufficiently

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plead prejudice, the circuit court did not err when it summarily dismissed

this claim.

I.A.10.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to inadmissible prior-bad-act evidence." (Scheuing's brief, p. 23.)

In his third-amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to certain prior-bad-act

evidence, claiming that,

"[d]uring the guilt innocence phase, the prosecution

introduced considerable evidence that [he] stole a Kia

Sportage vehicle and a gun in the days leading up to the

offense (R. 648-51, 652-56), and that [he] attempted to steal a

purse several days after the offense (R. 713-14). Trial counsel

failed to object to the introduction of this improper evidence

and, in the case of the attempted purse theft, counsel

stipulated to the admission of this aggravating prior bad acts

evidence. Counsel then failed to object when, in his guilt

innocence phase closing argument, the prosecution reminded

the jury of this evidence, thus highlighting [his] involvement

in the prior criminal activity."

(C. 868.) Scheuing claimed that he was prejudiced by his counsel's failure

to object to this evidence because, had they objected, then "the trial court

would have been obligated to exclude this evidence." (C. 869.) Scheuing

claimed that, if the jury had not been exposed to this prior-bad-act

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evidence, then "there is a reasonable probability that [he] would not have

been convicted and sentenced to death." (C. 869.)

The circuit court dismissed this claim as follows:

"Scheuing raised the issues underlying these

ineffectiveness claims on direct appeal. Concerning evidence

that Scheuing stole the sports-utility vehicle and the gun

before the murder, the Alabama Court of Criminal Appeals

held that 'there was no error in the admission of the evidence

regarding the theft of the Sportage and the pistol.' Scheuing,

161 So. 3d at 275. Since there was no error in the admission

of this evidence, this Court finds that Scheuing cannot

demonstrate that his trial counsel's performance was

deficient and that he was prejudiced under Strickland. See

Brooks v. State, [340 So. 3d 410, 466 (Ala. Crim. App. 2020)]

('Because this Court held [on direct appeal] that there was no

error in the State's rebuttal closing argument, Brooks'[s]

claim that his trial counsel were ineffective for failing to object

to the State's rebuttal closing argument is without merit.').

"....

"Concerning the admission of evidence that Scheuing

attempted to steal a purse after the murder, the Alabama

Court of Criminal Appeals held on direct appeal that this

evidence 'was admitted to establish an attempt by Scheuing

to continue his "flight after the murder and, thus, his

consciousness of guilt.' " Scheuing, 161 So. 3d at 276 (citation

omitted). The Criminal Court of Appeals concluded that 'the

admission of the evidence regarding the theft of [the victim's]

purse was not ... plain error.' Id.

"This Court is aware that a finding of no plain error on

direct appeal does not foreclose Scheuing from arguing that

he was prejudiced by his trial counsel's failure to object to the

prosecutor offering evidence that he attempted to steal a

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purse after the murder. See Taylor, 10 So. 3d at 1078.

However, 'Ex parte Taylor applies only to the prejudice prong

of Strickland, not to the deficient-performance prong.'

Woodward, 276 So. 3d at 769. This Court finds that Scheuing

failed to plead any specific facts in his petition that, if true,

would establish that his is a 'rare case.' See Boyd [v. State],

746 So. 2d [364,] 406 [(Ala. Crim. App. 1999)] ('Rule 32.6(b)

requires that the petition itself disclose the facts relied upon

in seeking relief.' ').

"Based on the holding by the Alabama Court of Criminal

Appeals and Scheuing's failure to plead any facts in his

petition to dispute that holding, this Court finds that this

ineffectiveness claim is without merit; therefore, it is denied.

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

(C. 1235-37.)

As the circuit court found in its order dismissing this claim, this

Court, in Scheuing's direct appeal, addressed the claims underlying

Scheuing's claim of ineffective assistance of counsel. In his direct appeal,

Scheuing argued that the trial court erred when it allowed the State to

introduce evidence of three theft offenses that, he said, was improper

prior-bad-act evidence: (1) the theft of the Kia Sportage; (2) the theft of

the pistol from the Kia Sportage; and (3) the theft of Palmer's purse.

Scheuing, 161 So. 3d at 271. This Court, reviewing Scheuing's arguments

for plain error, held that there was no error in the admission of the

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evidence indicating that Scheuing had stolen the Kia Sportage and the

pistol, explaining as follows:

"Scheuing argues that the State erroneously admitted

evidence indicating that he stole the Sportage and the .38

caliber pistol. During November, but before Thanksgiving

2008, Scheuing stole Harrison's Sportage, which contained

Jakiel's loaded .38 caliber pistol, the gun Scheuing used to kill

Cook. The admission of the evidence of the theft of the Kia

Sportage and the pistol, therefore, told the complete story of

Scheuing's crimes. That evidence also explained how

Scheuing acquired the pistol he used to murder Cook.

"Scheuing argues that the introduction of evidence

regarding the thefts of the Sportage and the pistol was

'unwarranted because it was entirely gratuitous' in light of

the fact that the 'entire shooting in [the] case was captured on

videotape and, upon request, Mr. Scheuing gave a complete

and candid confession.' (Scheuing's brief, at 41.) The State,

however, was not required to present minimal evidence

establishing Scheuing's guilt. Rather, the State had the right

to fully prove Scheuing's guilt with all relevant, admissible

evidence."

Scheuing, 161 So. 3d at 274 (footnote omitted).

Because there was no error in the trial court's admitting evidence

indicating that Scheuing had stolen the Kia Sportage and the pistol, any

objection that his counsel could have raised concerning that evidence

would have been baseless. Thus, the circuit court did not err when it

summarily dismissed this claim. See, e.g., Carruth, 165 So. 3d at 645

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(holding that counsel "were not ineffective for failing to raise a baseless

objection").

As to Scheuing's argument that the trial court erred when it

allowed the State to introduce evidence indicating that he stole a purse

after he killed Cook, this Court held on direct appeal that the admission

of that evidence did not rise to the level of plain error, explaining:

" ' " 'In a criminal prosecution the state may

prove that the accused engaged in flight to avoid

prosecution ... as tending to show the accused's

consciousness of guilt.... The state is generally

given wide latitude or freedom in proving things

that occurred during the accused's flight.' C.

Gamble, McElroy's Alabama Evidence § 190.01(1)

(3rd ed.1977). 'Evidence of flight is admissible

even though it is weak or inconclusive or if several

days have passed since the commission of the

crime.' Tate v. State, 346 So. 2d 515, 520 (Ala.

Crim. App. 1977). Evidence of flight is admissible

even though that evidence involves the

commission of other crimes by the accused. See

Tate, supra; Neal v. State, 372 So. 2d 1331, 1344-

45 (Ala. Crim. App. 1979)." '

"Eggers v. State, 914 So. 2d 883, 918-19 (Ala. Crim. App. 2004)

(quoting Beaver v. State, 455 So. 2d 253, 257 (Ala. Crim. App.

1984)).

"In Eggers, this Court addressed a claim of ineffective

assistance of counsel that was based, in part, on an assertion

that trial counsel should have objected to evidence

establishing that, following the commission of a capital

murder, the appellant 'was arrested in Kentucky while riding

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in a stolen pickup truck....' Eggers, 914 So. 2d at 916. This

Court concluded that the admission of the

" 'evidence relating to his arrest in Kentucky was

not offered to show his bad character by

establishing that he had committed another crime.

Rather, the evidence appears to have had a dual

purpose: to establish a link between Eggers and

the red Nissan pickup truck because, as noted

above, Francis's debit card was later found in that

truck and to establish Eggers's flight after the

murder and, thus, his consciousness of guilt.'

"Id. at 916.

"Here, the admission of the evidence relating to

Scheuing's attempted theft of the purse was admitted to

establish an attempt by Scheuing to continue his 'flight after

the murder and, thus, his consciousness of guilt.' Id. The

evidence established that Scheuing had been headed toward

the west coast. When he realized he was running low on

gasoline, he attempted to steal Palmer's purse. This provided

the jury with circumstantial evidence that the purpose for the

theft was to obtain money to purchase gasoline to help him

continue his flight. The admission of the evidence regarding

the theft of Palmer's purse was not, therefore, plain error.

Rule 45A, Ala. R. App. P."

Scheuing, 161 So. 3d at 275-76.

As explained above, and as correctly set out in the circuit court's

order dismissing this claim, although " 'a determination on direct appeal

that there has been no plain error does not automatically foreclose a

determination of the existence of the prejudice required under Strickland

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to sustain a claim of ineffective assistance of counsel,' " "it is 'the rare case

in which the application of the plain-error test and the prejudice prong of

the Strickland test will result in different outcomes.' " Bohannon, [Ms.

CR-21-0148, Aug. 18, 2023] ___ So. 3d at ____ (quoting Ex parte Taylor,

10 So. 3d at 1078).

As this Court noted in Scheuing's direct appeal, the State properly

presented evidence of the attempted theft of the purse to show Scheuing's

flight and, thus, to establish his consciousness of guilt. As the circuit

court noted in its order dismissing this claim of ineffective assistance of

counsel, Scheuing failed to plead any facts "in his petition to dispute that

holding" (C. 1237); and, thus, he failed to show why this claim was one of

the "rare" claims mentioned in Ex parte Taylor, supra, where the plain-

error standard and the prejudice prong of Strickland will result in

different outcomes. Thus, the circuit court properly dismissed this claim.

I.A.11.

Scheuing argues, as he did in his third amended petition, that his

counsel were ineffective for "fail[ing] to object to the State's improper

arguments through the [guilt] phase that watered down the reasonable-

doubt standard." (Scheuing's brief, p. 25.)

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In his Rule 32 petition Scheuing claimed that

"[d]uring closing arguments at the guilt/innocence phase, the

prosecution offered its own interpretation of the reasonable-

doubt standard for the jury through erroneous, suggestive,

and unlawful language that misled the jury as to the correct

standard: 'What is reasonable doubt? ... A doubt is not just

mere speculation, not fanciful conjecture, not guesswork, not

a doubt you've hunted up, not a juror who sits back in the

room and says, you know, there's got to be more to this story,

I can't believe stuff like this happens. Sometimes the case is

just what it is. You've seen clearly what occurred.' (R. 899-

900) (emphasis added)."

(C. 869-70.) Scheuing continued:

"Most problematic, in its closing argument, the

prosecution effectively eliminated the reasonable-doubt

standard completely by telling jurors there was no doubt in

Mr. Scheuing's case: 'Sometimes the case is just what it is.

You've seen clearly what occurred.' (R. 900.) Additionally,

though the prosecutor said reasonable doubt is not fanciful

speculation, he continued to erode the standard by telling

jurors that even doubts based on their common sense are not

sufficient. (R. 899-900 ('But a doubt is not ... a juror who sits

back in the room and says, you know, there's got to be more to

this story ....'))."

(C. 870.) Scheuing claimed that he was prejudiced by his counsel's failure

to object to these statements because an objection "would have prevented

the prosecution from misstating the reasonable-doubt standard, and

there is a reasonable probability that [he] would not have been convicted

and sentenced to death." (C. 870-71.)

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The circuit court dismissed this claim as being without merit

because "the issue underlying this ineffectiveness claim" was raised on

direct appeal and this Court held that Scheuing failed to show that the

prosecutor's argument was error. (C. 1238.)

On appeal, Scheuing again merely reiterates the claim raised in his

petition without mentioning or addressing the circuit court's order

dismissing this claim. This Court has held that similar failures of an

appellate brief render the brief noncompliant with Rule 28(a)(10), Ala. R.

App. P., and constitute a waiver of the underlying postconviction claim.

See, e.g., Woodward, 276 So. 3d at 746. Furthermore, the only legal

authority cited by Scheuing is Cage v. Louisiana, 498 U.S. 39, 41 (1990),

which involved a jury instruction by a trial court, not a comment by a

prosecutor, and the instruction in Cage is entirely different than the

statements made by the prosecutor in Scheuing's trail. Because

Scheuing's argument on appeal does not comply with Rule 28(a)(10), he

has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. As the circuit court correctly found in

its order dismissing this claim, this Court, in Scheuing's direct appeal,

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rejected the claim underlying Scheuing's claim of ineffective assistance

of counsel, holding:

"In Jackson v. State, [169 So. 3d 1, 66] (Ala. Crim. App.

2010), this Court addressed a claim that the prosecution had,

during closing argument, minimized the burden of proof by

arguing 'that the [jurors] should rely on their gut feelings and

look for the truth rather than holes or doubt in the case.'

Jackson, [169 So. 3d 66]. This Court found no error under the

plain-error standard, noting that 'the trial court properly

instructed the jury as to the reasonable-doubt standard and

admonished the jury members that they were not to consider

the arguments of counsel as evidence in the case.' Id.

"In Brown v. State, 11 So. 3d 866 (Ala. Crim. App. 2007),

this Court addressed a claim of error based upon the

prosecutor's argument: 'Remember I told you, you would know

it in your gut what's reasonable doubt? You will know it in

your gut. And I think you know it in your gut.' Brown, 11 So.

3d at 910. This Court found no plain error because:

" 'The circuit court specifically instructed the

jury that it was not to consider arguments of

counsel as the arguments related to the law and

that the court would instruct the jury as to the law

applicable in the case. The court correctly

instructed the jury on reasonable doubt. There is

no evidence that the above argument so infected

the trial with unfairness that Brown was denied a

fair trial.'

"Id.

"Here, the prosecutor did not eliminate the State's

burden of proof by telling jurors that it had already been

satisfied, nor did the prosecutor ask jurors to disregard their

common sense in assessing whether reasonable doubt exists.

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Rather, the prosecutor explained that fanciful speculation

does not give rise to reasonable doubt and that the evidence

the jury had seen and heard established Scheuing's guilt

beyond a reasonable doubt. There was nothing improper in

the prosecutor's argument. Furthermore, the circuit court

instructed the jury: 'What the attorneys have had to say, both

for the state and for the defendant, they are not any evidence

in this case.' (R. 916-17.) The court also correctly instructed

the jury on reasonable doubt.

"Accordingly, Scheuing has not established that the

prosecutor's argument was error, much less plain error. See

Rule 45A, Ala. R. App. P.; Brown, 11 So. 3d at 910."

Scheuing, 161 So. 3d at 284-85 (emphasis added).

Because this Court held that the complained-of comments were not

improper and because this Court further held that the trial court properly

instructed the jury on reasonable doubt, the issue underlying Scheuing's

claim of ineffective assistance of counsel is without merit, and any

objection that his counsel could have raised concerning those comments

would have been baseless. Thus, the circuit court did not err when it

summarily dismissed this claim. See, e.g., Carruth, 165 So. 3d at 645

(holding that counsel "were not ineffective for failing to raise a baseless

objection").

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I.A.12.

Scheuing argues that his counsel were ineffective for "fail[ing] to

request jury instructions on lesser-included offenses." (Scheuing's brief,

p. 26.)

In his third amended petition, Scheuing alleged that his trial

counsel were ineffective because they

"failed to request a lesser-included instruction, which left the

jury to decide between acquittal or conviction for capital

murder. With the third option unavailable, the jury was left

to ('resolve any doubts in favor of a capital conviction;' an

outcome that Beck[ v. Alabama, 447 U.S. [625 (1980),] found

untenable. 447 U.S. at 632. Had trial counsel requested a

lesser-included instruction, there is a reasonable probability

that Mr. Scheuing would not have been convicted or sentenced

to death."

(C. 871.)

The circuit court summarily dismissed this claim as insufficiently

pleaded because Scheuing failed to allege "what specific lesser-included

instructions his trial counsel should have requested," (C. 1238), and as

without merit because this Court in Scheuing's direct appeal found no

error in the trial court's "failure to give any lesser-included instructions."

(C. 1239.)

The totality of Scheuing's argument on appeal is as follows:

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"The United States Supreme Court has held that the

failure to instruct on a lesser-included offense when there is

some doubt regarding an element supporting a capital

conviction impermissibly 'enhances the risk of an

unwarranted conviction.' Beck v. Alabama, 447 U.S. 625, 637

(1980).

"Here, jurors viewed the confession and videotape of the

offense (R. 828, 861). Properly handled, Scheuing could be

presented to the jury as a lonely person who was protecting a

third party, no matter how ill advised. Trial counsel, however,

failed to request a lesser-included instruction, which left the

jury to decide between acquittal or conviction for capital

murder. With the third option unavailable, the jury was left

to 'resolve any doubts in favor of a capital conviction,' an

outcome that Beck found untenable. 447 U.S. at 632. Had

this occurred, it is likely Scheuing would have avoided the

death penalty."

(Scheuing's brief, p. 26.) Scheuing's two-paragraph argument does not

satisfy the requirements Rule 28(a)(10), Ala. R. Crim. P. Thus, Scheuing

has waived this claim.

Furthermore, the circuit court properly dismissed this claim as

insufficiently pleaded. As the circuit court noted in its dismissal of this

claim, although Scheuing alleged that his counsel were ineffective for

failing to request a jury instruction on a lesser-included offense, Scheuing

failed to allege what lesser-included offense his counsel should have

requested an instruction on. Just as a petitioner's "failure to explain in

his petition how the evidence presented at trial would have supported a

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jury instruction [and, thus,] failed to meet the specificity requirements of

Rule 32.6 (b), Ala. R. Crim. P.," Calhoun v. State, 261 So. 3d 457, 477

(Ala. Crim. App. 2016) (emphasis added), the failure to state which

lesser-included charge that the petitioner believes should have been

given is equally fatal to a claim of ineffective assistance of counsel. Thus,

Scheuing's claim failed to satisfy the full fact pleading requirements set

out in Rule 32.3 and 32.6(b), Ala. R. Crim. P., and the circuit court did

not err when it dismissed this claim.

I.A.13.

Scheuing argues that his counsel were ineffective for "fail[ing] to

object to the trial court's instruction that confessions were due greater

weight than other evidence." (Scheuing's brief, p. 27.)

In his third-amended petition, Scheuing alleged that his counsel

were ineffective when they did not object to the following jury instruction

given by the trial court:

" 'There has been testimony offered ... the defendant ... made

an alleged statement or confession .... I want to tell you that

such alleged confessions of guilt when deliberately and

voluntarily made are among the most effectual and

satisfactory proof that could be received in courts of justice.'

(R. 932-33)."

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(C. 872.) Scheuing alleged that he was prejudiced by his counsel's failure

to object to this instruction because his "confession was a centerpiece of

his trial" and the "prosecution relied heavily on it in its arguments." (C.

873.)

The circuit court summarily dismissed this claim because Scheuing

"raised the issue underlying this ineffectiveness claim on direct appeal"

and held that " 'in light of Scheuing's defense strategy to admit guilt and

to focus on sentencing, and the fact that the State's evidence of Scheuing's

guilt was ironclad, any error in the jury instructions was harmless.' " (C.

1240 (quoting Scheuing, 161 So. 3d at 281 (citation omitted)).

As noted in the circuit court's order dismissing this claim, this

Court, in Scheuing's direct appeal, examined the trial court's instruction

in context of "the entire jury instruction regarding Scheuing's

confessions," and found that "there is no 'reasonable likelihood that the

jury applied the instruction[s] in an improper manner.' " Scheuing, 161

So. 3d at 281 (quoting Singletary v. State, 473 So. 2d 557 (Ala. Crim. App.

1984)). This Court further held that, "in light of Scheuing's defense

strategy to admit guilt and to focus on sentencing, and the fact that the

State's evidence of Scheuing's guilt was ironclad, any error in the jury

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instructions was harmless. Ex parte Greathouse, 624 So. 2d at 211

(recognizing that error could be harmless when the evidence of the

defendant's guilt is 'virtually ironclad')." Scheuing, 161 So. 3d at 281.

Because this Court held in Scheuing's direct appeal that the complained-

of instructions were, at worst, harmless, and because Scheuing alleged

nothing in his petition that added to the argument he raised on direct

appeal, the circuit court did not err when it dismissed this claim.

I.A.14 and 15.

Scheuing argues that his counsel were ineffective for "fail[ing] to

question the jury foreman and other jurors after the foreman disclosed

misconduct." (Scheuing's brief, p. 28.) In a related claim, Scheuing also

argues that his counsel were ineffective for "fail[ing] to move for a

mistrial based on the jury foreman's misconduct." (Scheuing's brief, p.

29.)

In his third-amended petition, Scheuing claimed as follows:

"Trial counsel were ineffective in failing to question the

jury foreman or any other juror following the disclosure that

jury foreman T.K. overheard a bailiff say, "they ought to fry

that --," after which the guard covered his mouth with his

hands as he looked at the juror. (R. 955.) During jury

deliberations at the guilt/innocence phase, jury foreman T.K.

overheard a bailiff say that Mr. Scheuing should be executed.

(R. 954.) The foreman contacted an attorney uninvolved in

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the case who then contacted the court. (R. 954.) The Court

briefly questioned the jury foreman outside of counsel's

presence (R. 954-59), but trial counsel chose not to question

the foreman or any other juror as to the reported misconduct

(R. 959). Trial counsel failed to question the foreman about

his contact with the attorney, including the extent of their

discussion of the misconduct and the extent to which they had

discussed any other facet of the case. This failure was all the

more egregious because the juror misconduct occurred during

the guilt/innocence phase deliberations. Trial counsel also

failed to question other jurors as to whether the foreman

discussed the comment with them, which would have been

reasonable given that the foreman himself had already

committed misconduct by talking about the case to a member

of the public.

"Had trial counsel questioned other jurors, they would

have discovered the extent of misconduct as well as the extent

of prejudice it caused, they would have been better able to

move for a mistrial, and Mr. Scheuing would not have been

convicted of capital murder and sentenced to death. Foreman

T.K. was the leader in the deliberations. He was an important

person in the room -- the foreman."

(C. 873-74.) Scheuing also alleged that his counsel were ineffective for

failing to move the trial court for a mistrial based on this alleged

misconduct. (C. 874-75.)

The circuit court dismissed both claims because Scheuing raised

"the issue underlying this ineffectiveness claim on direct appeal" and this

Court found that " 'the circuit court properly followed the process for

addressing third-party contacts with jurors' and held that 'no error much

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less plain error resulted from the circuit court's failure to declare a

mistrial.' " (C. 1241-42 (quoting Scheuing, 161 So. 3d at 271).)

On appeal, Scheuing reiterates the claims raised in his petition

without even mentioning or addressing the circuit court's order

dismissing this claim. This Court has held that similar failures of

argument do not comply with Rule 28(a)(10), Ala. R. App. P., and

constitute a waiver of the underlying postconviction claim. See, e.g.,

Woodward, 276 So. 3d at 746. Scheuing also cites no legal authority

supporting his proposition that counsel should have questioned the juror

about the discussion. Because Scheuing's arguments on appeal do not

comply with Rule 28(a)(10), Ala. R. App. P., he has waived his arguments.

Even so, his arguments are without merit. To start, Scheuing's

claim that his trial counsel were ineffective for failing to ask the jury

foreman and other jurors questions about the alleged misconduct is

insufficiently pleaded. Indeed, although Scheuing alleged that this

counsel should have asked the jury foreman "about his contact with the

attorney, including the extent of their discussion of the misconduct and

the extent to which they had discussed any other facet of the case" and

failed to ask "other jurors as to whether the foreman discussed the

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comment with them," (C. 873), Scheuing did not allege how the jury

foreman and the other jurors would have answered those questions had

his trial counsel asked them. Scheuing also did not sufficiently allege

how he was prejudiced by his counsel's alleged failures. Rather, Scheuing

made only the bare allegation that his counsel "would have discovered

the extent of misconduct as well as the extent of prejudice it caused,"

which, he said, would have allowed them to be "better able to move for a

mistrial, and Mr. Scheuing would not have been convicted of capital

murder and sentenced to death." (C. 874.) Yet, there is no basis to believe

that the "extent of misconduct" is any greater than what was discussed

during the trial. Scheuing's bare allegation of prejudice is not sufficient

to satisfy his burden of pleading under Rule 32.3 and 32.6(b), Ala. R.

Crim. P. See, e.g., Hyde, 950 So. 2d at 356 ("A bare allegation that

prejudice occurred without specific facts indicating how the petitioner

was prejudiced is not sufficient."). Thus, the circuit court did not err

when it summarily dismissed this claim.

Additionally, the circuit court properly dismissed Scheuing's claim

that his counsel were ineffective for failing to move for a mistrial. As the

circuit court noted in its order dismissing this claim, this Court, in

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Scheuing's direct appeal, held "that no error, much less plain error,

resulted from the circuit court's failure to declare a mistrial." Scheuing,

161 So. 3d at 271. Because counsel is not "ineffective for failing to raise

a baseless objection" or claim, Carruth, 165 So. 3d at 645, the circuit court

properly dismissed Scheuing's claim that his counsel were ineffective for

failing to move for a mistrial.

I.B. Penalty Phase

Next, we turn to Scheuing's arguments concerning his counsel's

effectiveness during the penalty phase of his trial.

I.B.1.

First, Scheuing argues that his counsel were ineffective for

"fail[ing] to present a coherent mitigation theory, introducing

aggravating evidence that directly contradicted their mitigating

evidence." (Scheuing's brief, p. 31.) Specifically, Scheuing says that his

counsel were ineffective when they presented testimony from Robert

Scheuing, Joanne Terrell, and Richard Green and later presented

testimony from Donal Frye that undermined their mitigation theory that

Scheuing did well in a structured environment and had changed since he

had murdered Cook. Scheuing explains that his

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"[c]ounsel emphasized during their penalty phase

presentation was that Scheuing did well in structured

environments, such as Youth Challenge Academy, the Air

Force, and prison. (See, e.g., 1074, 1083, 1173, 1177.) Counsel

emphasized that Scheuing did well in structured

environments in their opening and closing statements. (R.

976, 1242.) Counsel then elicited testimony from Robert

Scheuing that Scheuing did well in 'very strict' and

'structured environments.' (R. 1073-74.) At the end of

counsel's questioning of Robert Scheuing, counsel emphasized

this point. (R. 1083.) Defense counsel also elicited testimony

from Joann Terrell regarding Scheuing's ability to do well in

a structured environment. (R. 1172, 173, 176.)

"These records painted a different story about Scheuing.

The records show Scheuing's struggles in prison in Georgia,

including his disciplinary history (C. 688-89, 696, 703, 804,

1046); his attempt to escape from prison in Georgia (C. 645-

55, 891, 893, 944); and his altercation with an inmate while

awaiting trial in the Calhoun County jail. (C. 516-38.)

"Counsel also called Donald Frye, the inmate at the jail

with whom Scheuing had an altercation, to testify. (R. 1094-

1 105.) This evidence directly contradicted counsel's claim,

and Robert Scheuing and Joann Terrell's testimony, that

Scheuing did well in structured environments.

"Counsel also attempted to argue that Scheuing had

changed while awaiting trial in the Calhoun County jail.

Richard Green testified that Scheuing sought him out, that

they prayed together, and that he enrolled Scheuing in a Bible

study. (R. 1108-19.) The testimony that defense counsel

elicited from Donald Frye (R. 1094-1100), along with the jail

records that counsel entered into evidence (C. 516-38),

directly contradicted their attempt to prove that Scheuing had

changed since the crime. On cross-examination of Richard

Green, the prosecution pointed out this contradiction for the

jury. (R. 120 ('When he stabbed Donald Frye 87 times could

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it have been witnessing to him?').) On rebuttal, the

prosecution entered into evidence testimony regarding the jail

altercation and then played the video of the altercation for the

jury. (R. 1213-24.)"

(Scheuing's brief, pp. 32-34.)

The circuit court dismissed the claim Scheuing raised in his third-

amended petition as follows:

"The penalty-phase strategy that Scheuing's trial

counsel pursued included presenting evidence to demonstrate

to the jury and the circuit court that Scheuing did well in

structured environments. Scheuing condemns his counsel as

ineffective for presenting conflicting evidence, such as records

from his time in prison in Georgia and records of his time in

jail awaiting trial. Scheuing also contends that his counsel

were ineffective for calling Donald Frye to testify about an

incident at the Calhoun County Jail during which Scheuing

stabbed Frye multiple times with a pen.

"The Eleventh Circuit has held that '[o]penness in a jury

trial is a move that can pay off. We have previously

recognized the reasonableness of being forthcoming with the

jury.' Walls v. Buss, 658 F.3d 12741 1279 (11th Cir. 2011). It

is clear to this Court that Scheuing's trial counsel were aware

that the State was entitled to present evidence to disprove the

existence of mitigating circumstances on which Scheuing

might rely and made the strategic decision to present the

evidence first in the hope of lessening its impact on the jury.

This Court finds that this strategy was objectively reasonable

under the circumstances and did not constitute deficient

performance on the part of Scheuing's counsel nor was it

prejudicial to him. See State v. White, 693 N.E.2d 772, 779-

80 (Ohio 1998) (holding that defense counsel's strategy of

eliciting and allowing testimony of the defendant's prior bad

acts in an attempt to 'lessen the blow' of the evidence 'was

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sound and did not amount to ineffective assistance of

counsel'); see also Martin v. State, 265 S.W.3d 435, 445 (Tex.

Crim. App. 2007) ('Because it also appears that appellant's

candor before the jury concerning his prior convictions was a

strategic attempt to appear open and honest, and to lessen the

impact of any impeachment on the issue, we cannot conclude

that his counsel provided ineffective assistance with regard to

the introduction of these convictions.")."

(C. 1243-44 (some citations omitted).)

On appeal, Scheuing reiterates the allegations he raised in his

petition. But Scheuing does not address the reasons the circuit court

gave in its order for summarily dismissing this claim. This Court has

held that similar failures of argument do not comply with Rule 28(a)(10),

Ala. R. App. P., and constitute a waiver of the underlying postconviction

claim. See, e.g., Woodward, 276 So. 3d at 746. In this section of his

appellate brief, he did not state what "coherent mitigation theory" should

have been presented, how the complained of testimony could have been

precluded from being admitted into evidence, or why the trial court was

incorrect in holding that counsel followed a reasonable trial strategy.

Although he cites some legal authority in a preliminary and related

section of his brief that accurately reflects trial counsel's obligation to

investigate penalty phase issues in a capital murder trial, he cites no

legal authority supporting his argument that the alleged failure to

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present a "coherent mitigation theory" should result in Scheuing being

granted relief. Because Scheuing's argument on appeal does not comply

with Rule 28(a)(10), Ala. R. App. P., he has waived his argument.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. As Scheuing alleged in his petition and

as the circuit court noted in its order dismissing this claim, Scheuing's

trial counsel's mitigation strategy was based, in part, on showing that

Scheuing did well in a structured environment. As the circuit court

pointed out, doing so opened the door for the State to present rebuttal

evidence that Scheuing had stabbed Donald Frye, an inmate in the

Calhoun County jail. Instead of allowing the State to present testimony

from Frye about the stabbing, Scheuing's counsel made the decision to

call Frye and to be open and honest with the jury about Scheuing's

encounter with Frye.

During Frye's testimony, Frye said that Scheuing had stabbed him

87 times with an ink pen, but he admitted that he had instigated it by

telling Scheuing that Scheuing "ain't no killer, there ain't no guns in

here." (Record in CR-10-1454, R. 1096-97.) Frye also explained that he

should not have been out of his cell at the same time as Scheuing when

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the attack occurred because the jail unit was only supposed to allow one

cell open at a time for a one-hour period, and that Scheuing and Frye

were in different cells. Frye said that they were only out at the same

time because of "neglect of the officer"; "they forgot to lock him down or

didn't lock him down before they let me out." (Record in CR-10-1454, R.

1098-99.) In other words, it was a failing of institutional structure that

led to the stabbing. Scheuing's counsel also referenced Scheuing's having

stabbed Frye in the penalty-phase closing argument and attempted to

explain to the jury that Richard Green's testimony showed that Scheuing

is "not the Jesse Scheuing that stabbed somebody 87 times." (Record in

CR-10-1454, C. 1256.) Rather, Scheuing had changed.

Although Scheuing's Rule 32 counsel alleged that his trial counsel's

strategy of being open and honest about Scheuing's having stabbed Frye

in jail was ineffective and undermined their mitigation case, as the

circuit court explained, openness and honesty may be a reasonable

strategic choice:

"Openness in a jury trial is a move that can pay off. We have

previously recognized the reasonableness of being

forthcoming with the jury. See Straight v. Wainwright, 772

F.2d 674, 681 (11th Cir. 1985) (counsel was not ineffective for

failing to object to a question on cross-examination, where

counsel was pursuing a plan of being 'truthful and open' with

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the jury). Moreover, we have recognized that it can be

reasonable to let incriminating evidence come to the jury's

attention. See Atkins v. Singletary, 965 F.2d 952, 960 (11th

Cir. 1992) (in a prosecution for the kidnapping, sexual

battery, and murder of a six-year old boy, counsel was not

ineffective for allowing prosecutors to put into evidence the

male defendant's confession to sexual relations with 45 boys

and young men, where counsel's plan was to 'bring into play

[the defendant's] sexual proclivities')."

Walls v. Buss, 658 F.3d 1274, 1279 (11th Cir. 2011). What is more,

Scheuing did not adequately plead any facts showing that he was

prejudiced by his counsel's decision to call Frye to testify. Thus, the

circuit court did not err when it summarily dismissed this claim.

I.B.2.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate and present a basis for a sentence of life at the

penalty and sentencing phases of [his] trial." (Scheuing's brief, p. 34.)

According to Scheuing, his trial counsel "interviewed Robert

Scheuing, Marilynn Scheuing, Timothy Scheuing, and Roberta Scheuing

together but failed to conduct adequate follow-up interviews."

(Scheuing's brief, p. 35.) Scheuing also said that, although his counsel

interviewed Trevor Atkins and Michael Atkins, who lived next door to

Scheuing, the interview occurred in the presence of Robert Scheuing

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(Scheuing's father). Scheuing said that, if his counsel had spoken with

Trevor without Robert being present, "he would have informed counsel

that while Marilynn and Robert Scheuing might have claimed to be good

parents, they were just the opposite." (Scheuing's brief, pp. 35-36.)

Scheuing also said that his trial counsel "failed to contact

mitigation witnesses who were available and willing to testify, including

Sarah Counts, John Renn, Zachary Donner, Spencer Davis, Dustin

Helms, Mills Horn, Sandy Chambers, Lisa Fesperman, Kay Cook, Jack

Loftin, Randy Yonz, Robert Kline, Betsy Clark, Brenda Luke, Janet

Zimmerman, Jeffrey Helms, Anina Davis, Irene Shadron, Tara Atkins,

and Peggy Ray." (Scheuing's brief, p. 36.) As to these people, Scheuing

says that they would have testified as follows:

" Zachary Donner could have testified that Scheuing’s

mother seemed to hate him and that Scheuing would live with

Donner during the summer months.

" Dustin Helms -- childhood friend who could have

testified that Scheuing's childhood home was filthy and

disgusting. Scheuing's bed was two boards.

" Anina Davis, mother of a childhood friend could have

testified about the lack of supervision and loving home.

" Irene Shadron, neighbor who testified that Scheuing

would go over there to seek attention and was very good to

her.

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" Mills Horn -- could have testified that Scheuing's

stepfather also hated him and would severely beat him.

" Sandy Chambers, school official, would have testified

that this was not a stable or loving family.

" Kay Cook, Scheuing's math and reading teacher could

have testified to his academic potential.

" Jack Loftin, Technology teacher could have testified

that Scheuing never got into a fight.

" Betsy Clark would have testified that he was mostly

in special education classes.

" Janet Zimmerman, who supervised Scheuing at the

Youth Challenge Academy.

" Trevor Atkins -- knew Scheuing when he first was

released from prison. Knew that Scheuing had a girlfriend,

April Musgrove. Trevor could testify this person was playing

Scheuing.

" Tara Atkins could have testified to Scheuing having a

girlfriend who may have miscarried.

" Sarah Counts -- could have testified that Scheuing's

girlfriend was lying about the pregnancy and miscarriage to

get money from him.

" Michael Atkins -- could have testified that he lived

with Scheuing upon his release from prison. He also felt April

was using Scheuing.

(Scheuing's brief, pp. 36-38.)

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Although Scheuing makes these above-listed allegations in his brief

on appeal, which reiterates the allegations he raised in his third-

amended petition, Scheuing does not address the reasons the circuit court

gave in its order for summarily dismissing this claim of ineffective

assistance of counsel. In fact, Scheuing does not mention the circuit

court's order in his argument on appeal. As previously noted, this Court

has held that similar failures render a brief noncompliant with Rule

28(a)(10), Ala. R. App. P., and constitute a waiver of the underlying

postconviction claim. See, e.g., Woodward, 276 So. 3d at 746.

Even so, the circuit court properly dismissed this claim of

ineffective assistance of counsel. The circuit court summarily dismissed

Scheuing's claim of ineffective assistance of counsel as follows:

"On pages 53-55 of Scheuing's petition, he claims that

his trial counsel were ineffective for not interviewing his

siblings and his friend outside the presence of Scheuing's

parents. (Doc. 77 at 54-56.)

"When a petitioner claims that his trial counsel were

ineffective for failing to properly interview witnesses, the

petitioner is required to state facts in his petition showing

that the failure ' "resulted in counsel's ignorance of valuable

evidence which would have substantially benefitted the

accused.' " Walker v. State, 194 So. 3d 253, 292 (Ala. Crim.

App. 2015) (citation omitted). Scheuing fails to proffer in his

petition what specific information his siblings and friend

would have disclosed to his counsel if they had been

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interviewed outside the presence of his parents. Scheuing

also fails to state in his petition why there is a reasonable

probability that testimony from these individuals, if

presented during the penalty phase of trial, would have been

so compelling it would have caused a different outcome.

Scheuing fails to proffer any specific facts in his petition that,

if true, would demonstrate his counsel's performance was

deficient and caused him to be prejudiced. See Mashburn v.

State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013)

('Speculation is not sufficient to satisfy a Rule 32 petitioner's

burden of pleading.').

"....

"On page 55 of Scheuing's petition, he claims that his

trial counsel were ineffective for not contacting his biological

half-sister and her ex-husband. (Id. at 56.) Scheuing

contends that they took him in because his adoptive mother

demeaned him, kicked him out of the house, and that

Scheuing was otherwise ignored by his adoptive parents. On

page 56 of Scheuing's petition, he claims that his counsel were

ineffective for not contacting more of his friends. (Id. at 57.)

He also contends these individuals would have testified that

the Scheuing household was a 'chaotic and disturbing' place

and that Scheuing was bullied and demeaned at home and at

school. (Id.) Scheuing also claims on pages 57-58 of his

petition that his counsel were ineffective for not contacting

certain former teachers and administrators. He contends

these individuals would have testified that he struggled in

school and had a difficult home life. (Id. at 58- 59.) On pages

58-59 of his petition, Scheuing claims that his counsel were

ineffective for not contacting other individuals, including

some of his former teachers and neighbors. (Id. at 59-60.)

" ' "There is ... no per se rule that failure to interview

witnesses constitutes ineffective assistance. Ineffective

assistance cases turn on their individual facts." ' Benjamin v.

State, 156 So. 3d 424, 441-42 (Ala. Crim. App. 2013) (citation

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omitted). Additionally, '[t]he Constitution imposes no burden

on counsel to scour a defendant's background for potential

abuse given the defendant's contrary representations or

failure to mention the abuse.' Stewart v. Sec'y, Dept. of Corr.,

476 F.3d 1193, 1211 (11th Cir. 2007).

"Joanne Terrell, an experienced mitigation

investigation specialist that was retained by Scheuing's trial

counsel, stated in her written report that Scheuing

characterized his childhood with his adoptive family as 'quiet,

comfortable, and middle class.' (C. 419.) Scheuing also told

Ms. Terrell that he and his adoptive mother were 'close' and

that his adoptive father was his 'best friend.' Id. There was

nothing in Ms. Terrell's report indicating that anyone in the

Scheuing household, including Scheuing, had ever reported

that he was mistreated by his mother. See Newland v. Hall,

527 F.3d 1162, 1202 (11th Cir. 2008) ('In evaluating the

reasonableness of a defense attorney's investigation, we

weigh heavily the information provided by the defendant.').

"While Scheuing reported to Ms. Terrell that he was

bullied at school, there was nothing in her report indicating

that Scheuing, or any of his siblings, disclosed to his trial

counsel or Ms. Terrell that Scheuing had been bullied or

otherwise mistreated at home. In addition, rather than argue

that Scheuing's childhood problems were due to being bullied

at school, his counsel presented evidence proving that

Scheuing was diagnosed with ADHD and conduct disorder

and was not properly treated because his adoptive mother

believed that his behavioral problems were caused by Fetal

Alcohol Syndrome.

"Just because Scheuing's trial counsel did not present

every possible detail about his childhood that he now believes

they should have does not demonstrate counsel's performance

was deficient and prejudicial. See Tanzi v. Secy, Dept. of

Corr., 772 F.3d 664, 659 (11th Cir. 2014) (' "[C]ounsel is not

required to present all mitigation evidence, even if the

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additional mitigation evidence would not have been

incompatible with counsel's strategy. Counsel must be

permitted to weed out some arguments to stress others and

advocate effectively.' ") (citation omitted)."

(C. 1245-49.) We agree with the circuit court's judgment.

As set out above, Scheuing alleged in his third-amended petition

that the above-mentioned individuals would have testified, among other

things, that Scheuing's home life with his parents was not as good as it

seemed. But, as the circuit court pointed out, Scheuing told Joanne

Terrell, the hired mitigation specialist, that his home life was " 'quiet,

comfortable, and middle class.' " (C. 1248 (citation omitted).) Although

Scheuing alleged in his third amended petition that his counsel were

ineffective for failing to investigate and present evidence of his difficult

home life, this Court has held that

" ' "[t]he reasonableness of counsel's actions

may be determined or substantially influenced by

the defendant's own statements or actions.

Counsel's actions are usually based, quite

properly, on informed strategic choices made by

the defendant and on information supplied by the

defendant. In particular, what investigation

decisions are reasonable depends critically on such

information." '

"Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App.1999).

'[T]he scope of the duty to investigate mitigation evidence is

substantially affected by the defendant's actions, statements,

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and instructions. As the Supreme Court explained in

Strickland, the issue of what investigation decisions are

reasonable "depends critically" on the defendant's

instructions....' Cummings v. Secretary, Dep't of Corr., 588

F.3d 1331, 1357 (11th Cir. 2009)."

James v. State, 61 So. 3d 357, 364 (Ala. Crim. App. 2010). Scheuing's

trial counsel were not constitutionally ineffective for failing to investigate

and present evidence of Scheuing's difficult home life when Scheuing had

described his home life to Terrell as " 'quiet, comfortable, and middle

class.' " (C. 1248 (citation omitted).)

Furthermore, as set out above, Scheuing claimed that his counsel

were ineffective for failing to interview people and to investigate and

present evidence of Scheuing's issues at school, at "Youth Challenge

Academy," and his relationship with April Musgrove. This Court has

explained that,

" '[w]hen claims of ineffective assistance of

counsel involve the penalty phase of a capital

murder trial the focus is on " 'whether "the

sentencer ... would have concluded that the

balance of aggravating and mitigating

circumstances did not warrant death." ' " Jones v.

State, 753 So. 2d 1174, 1197 (Ala. Crim. App.

1999), quoting Stevens v. Zant, 968 F.2d 1076,

1081 (11th Cir. 1992). See also Williams v. State,

783 So. 2d 108 (Ala. Crim. App. 2000). An

attorney's performance is not per se ineffective for

failing to present mitigating evidence at the

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penalty phase of a capital trial. See State v. Rizzo,

266 Conn. 171, 833 A.2d 363 (2003); Howard v.

State, 853 So. 2d 781 (Miss. 2003), cert. denied,

540 U.S. 1197 (2004); Battenfield v. State, 953

P.2d 1123 (Okla. Crim. App. 1998); Conner v.

Anderson, 259 F. Supp. 2d 741 (S.D. Ind. 2003);

Smith v. Cockrell, 311 F.3d 661 (5th Cir. 2002);

Duckett v. Mullin, 306 F.3d 982 (10th Cir. 2002),

cert. denied, 123 S. Ct. 1911 (2003); Hayes v.

Woodford, 301 F.3d 1054 (9th Cir. 2002); and Hunt

v. Lee, 291 F.3d 284 (4th Cir.), cert. denied, 537

U.S. 1045 (2002).'

"Adkins v. State, 930 So. 2d 524, 536 (Ala. Crim. App. 2001)

(opinion on return to third remand). As we also stated in

McWilliams v. State, 897 So. 2d 437, 453-54 (Ala. Crim. App.

2004):

" ' "Prejudicial ineffective assistance of

counsel under Strickland cannot be established on

the general claim that additional witnesses should

have been called in mitigation. See Briley v. Bass,

750 F.2d 1238, 1248 (4th Cir. 1984); see also

Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.

1990). Rather, the deciding factor is whether

additional witnesses would have made any

difference in the mitigation phase of the trial."

Smith v. Anderson, 104 F. Supp. 2d 773, 809 (S.D.

Ohio 2000), aff'd, 348 F.3d 177 (6th Cir. 2003).

"There has never been a case where additional

witnesses could not have been called." State v.

Tarver, 629 So. 2d 14, 21 (Ala. Crim. App. 1993).' "

Hunt v. State, 940 So. 2d 1041, 1067-68 (Ala. Crim. App. 2005).

In his third amended petition, Scheuing set out the list of people he

said his counsel should have interviewed and a brief explanation of what

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those people would have testified to during the penalty phase. As for how

he was prejudiced by his counsel's failure to interview these potential

witnesses, Scheuing alleged:

"Trial counsel's failure to adequately investigate and

present mitigating evidence resulted in prejudice to Mr.

Scheuing, requiring this Court to reverse his sentence.

Strickland, 466 U.S. at 687, 692; Williams [v. Taylor], 529

U.S. [362,] 396-97 [(2000)]. Despite counsel's ineffective

investigation and presentation, two jurors recommended that

Mr. Scheuing be sentenced to life without parole. Had counsel

conducted an adequate investigation, they could have

gathered compelling mitigating evidence regarding Mr.

Scheuing's experiences as an infant, in the Scheuing

household, and in school. Counsel's errors, individually and

collectively, denied Mr. Scheuing effective assistance of

counsel in violation of Article I, Sections 6, 8, and 5 of the

Alabama Constitution, and the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution.

But for counsel's deficient performance, the outcome of Mr.

Scheuing's trial would have been different.

"Despite the inadequate mitigation presentation, the

jury nevertheless refused to unanimously return a death

verdict. During the judicial sentencing phase, trial counsel

failed to proffer any additional evidence; indeed, counsel

barely made an argument as to why the jury's verdict was

correct and that Mr. Scheuing should be sentenced to life

without the possibility of parole. The Eleventh Circuit Court

of Appeals has held that the 'relative weakness of the state's

death penalty case is underscored by the fact that the jury

recommended a life sentence,' and where 'the jury decisively

voted against the death penalty ... it weighs heavily in favor

of a finding of prejudice,' in an ineffectiveness claim. Williams

v. Allen, 542 F.3d 1326, 1343 (11th Cir. 2008). The same is

true in Mr. Scheuing's case.

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"Counsel's failure to investigate and adequately present

evidence at the penalty phase of Mr. Scheuing's trial

prejudiced him. Had the jury and judge been presented with

the readily available facts from Mr. Scheuing's background,

there is a reasonable probability that Mr. Scheuing would not

have received a death sentence. Strickland, 466 U.S. 668. See

also Daniels [v. State], 650 So. 2d [544,] at 552 [(Ala. Crim.

App. 1994)]; Hyde [v. State], 950 So. 2d. [344,] 355-56 [(Ala.

Crim. App. 2006)]."

(C. 920-21.)

Here, Scheuing's claim that he was prejudiced by his counsel's

failure to interview the above-named witnesses does not adequately set

out a full factual basis of prejudice under Rule 32.3 and Rule 32.6(b), Ala.

R. Crim. P., and does not adequately explain how testimony from these

witnesses that would have contradicted Scheuing's own statement to his

mitigation specialist (and thus weakened Terrell's testimony) would have

changed the balance of how the sentencer in this case would have

weighed the aggravating and mitigating circumstances. Accordingly, the

circuit court did not err in dismissing this claim.

I.B.3.

Scheuing argues that his counsel were ineffective for "fail[ing] to

adequately investigate or present evidence regarding [his] significant

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struggles with mental illness to the jury and judge." (Scheuing's brief, p.

38.) The totality of Scheuing's argument on appeal is as follows:

"Uncontested evidence that Mr. Scheuing suffered from

a 'serious psychological disease' -- while not rendering him not

guilty by reason of mental disease or defect -- was certainly a

mitigating circumstance that should have been fully

considered and weighed by the trial court. See Porter v.

McCollum, 558 U.S. 30, 40 (2009) (reversing where jury

deprived of mitigating evidence of mental illness); Brewer v.

Quarterman, 550 U.S. 286, 289-90, 294, 296 (2007) (reversing

where jury precluded from considering evidence of mental

illness); Rompilla v. Beard, 545 U.S. 374, 391-93 (2005)

(reversing where jury deprived of evidence of mental illness);

Eddings v. Oklahoma, 455 U.S. 104, 114-15 (1982) (reversing

death sentence where state trial and appellate courts gave

'relevant mitigating evidence' concerning mental illness 'no

weight by excluding such evidence from their consideration').

"As mentioned above, Mr. Scheuing almost certainly has

Fetal Alcohol Syndrome. He also reports multiple head blows

that left scars on him. Mr. Scheuing has troubles moving

short-term memories into his long-term memory. His awful

experiences with his birth mother and Marilynn Scheuing

most certainly left him with attachment disorders."

(Scheuing's brief, pp. 38-39.)

Scheuing's two-paragraph "argument," which is taken verbatim

from the claim raised in his third amended Rule 32 petition (see C. 921-

22), cites only general propositions of law, fails to cite the record on

appeal, and does not address the reasons the circuit court gave in its

order for summarily dismissing this claim. The trial court correctly held

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that Scheuing failed to identify what "evidence" his counsel should have

obtained and that he did not "name any qualified mental health expert

that was available and willing to testify at his trial that Scheuing suffers

from Fetal Alcohol Syndrome, abnormalities with attachments, or any

other serious mental illness." (C. 1258-59.) In short, not only is

Scheuing's argument without merit, it does not satisfy Rule 28(a)(10),

Ala. R. App. P. Thus, Scheuing has waived his argument. See, e.g.,

Woodward, 276 So. 3d at 746 (holding that Woodward's argument on

appeal did not satisfy Rule 28(a)(10) and was, therefore, deemed waived

when he "reassert[ed] this claim from his petition, but he ma[de] no

argument regarding why he believe[d] the circuit court's findings were

incorrect").

I.B.4.

Scheuing argues that his counsel were ineffective for "fail[ing] to

challenge the State-appointed psychologist's pretrial diagnosis of Anti-

Social Personality Disorder." (Scheuing's brief, p. 39.) The totality of

Scheuing's argument on appeal is as follows:

"Mr. Scheuing pretrial mental evaluation determined

that he had an Anti-Social Personality Disorder ('ASPD')

erroneously. Mr. Scheuing cannot have ASPD because he

suffers from bipolar disorder. And a person cannot have

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ASPD while suffering from organic brain damage from Fetal

Alcohol Syndrome. See American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders, 662

(5th ed. 2013).

"The Fourteenth Amendment's Due Process Clause also

forbids the State from using this unscientific evidence masked

as medical science. See, e.g., Gimenez v. Ochoa, 821 F.3d 1136

(9th Cir. 2016); Lee v. Superintendent, 798 F.3d 159 (3d Cir.

2015).

"Because the State's psychologist made this diagnosis

and submitted it to the Court, it was part of the Record. The

trial judge is presumed to know and consider the Record when

making decisions in a case, so the court considered this

evidence when overriding the jury’s verdict of life. This

evidence was highly prejudicial and entitles Mr. Scheuing to

sentencing relief."

(Scheuing's brief, pp. 39-40.)

Scheuing's argument, which is a verbatim copy of the claim he

raised in his third amended Rule 32 petition (see C. 923-24), does not cite

the record on appeal and does not address the reasons the circuit court

gave in its order for summarily dismissing this claim. Thus, Scheuing's

argument does not satisfy Rule 28(a)(10), Ala. R. App. P., and is waived

for appellate review. See, e.g., Woodward, 276 So. 3d at 746.

Even if Scheuing's argument had satisfied Rule 28(a)(10), his

argument is without merit. The circuit court summarily dismissed this

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claim regarding counsel's failure to contest his anti-personality disorder

diagnoses as insufficiently pleaded, finding as follows:

"On pages 96-97 of Scheuing's petition, he claims that

his trial counsel failed to challenge testimony from Dr. Glen

King that he met the diagnostic criteria for Anti-Social

Personality Disorder. (Doc. 77 at 97-98.)

"Scheuing fails to identify in his petition by name any

qualified mental health expert that was available and willing

to testify at his trial that Scheuing suffers from bipolar

disorder or organic brain damage due to Fetal Alcohol

Syndrome. See Brooks, [340 So. 3d 410, 437 (Ala. Crim. App.

2020)]. Scheuing also fails to explain in his petition why such

testimony would have challenged Dr. King's testimony that

he met the diagnostic criteria for Anti-Social Personality

Disorder (ASPD) or why it is allegedly impossible to diagnose

someone with both ASPD and bipolar disorder."

(C. 1259-60.) We agree with the circuit court.

Although Scheuing made general allegations that his counsel

should have challenged Dr. King's testimony about his diagnosis of Anti-

Social Personality Disorder because, he says, he "cannot have ASPD

because he suffers from bipolar disorder" and "a person cannot have

ASPD while suffering from organic brain damage from Fetal Alcohol

Syndrome," Scheuing alleged no facts establishing how his counsel would

have shown that Dr. King's diagnosis was incorrect, how his counsel

would have shown that he has bipolar disorder, or how his counsel would

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have shown how it is impossible for a person to be diagnosed with both

Anti-Social Personality Disorder and bipolar disorder. As the circuit

court found, Scheuing failed to identify by name any person his counsel

should have called to testify about the above-mentioned claims. Thus, as

the circuit court correctly found, Scheuing's claim was insufficiently

pleaded and he is not entitled to relief on this claim.

I.B.5.

Scheuing argues that his counsel were ineffective "during opening

argument of the penalty phase." (Scheuing's brief, p. 40.)

In his third amended petition, Scheuing alleged that his counsel

were ineffective during "opening arguments." (C. 924.) First, Scheuing

alleged that, during the State's penalty-phase opening statement, the

State told the jury that it was going to present two aggravating

circumstances (namely, that the offense was committed during a robbery

and that Scheuing committed the offense while under a sentence of

imprisonment) and that the State informed the jury that Scheuing "had

been convicted of several felony counts in Georgia." (C. 234.) In response,

Scheuing said that his counsel

"told the jury that [Scheuing] had gotten in trouble for

stealing cars in Georgia; that he had served time in prison;

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and that he had been charged with escape. All these

undoubtedly aggravating instances were irrelevant to any of

the aggravating circumstances and thus inadmissible at trial.

Later in the opening statement, when defense counsel read

through the possible aggravating circumstances, counsel once

again mentioned the car thefts and stated that they were not

relevant to the aggravating circumstances. Had counsel not

introduced these facts to the jury during its opening

argument, and had counsel objected when the prosecution

tried to mention these facts, the jurors would not have been

aware of [Scheuing's] prior crimes and thus they would not

have considered them during their deliberations."

(C. 924-25 (citations omitted).)

Second, Scheuing alleged that his counsel were ineffective during

their penalty-phase opening statements because

"counsel also did not attempt to explain how any of the

mitigating circumstances affected [Scheuing]. Counsel

repeatedly promised the jury that 'Joann Terrell, the

mitigating expert, will explain to you how that has an effect

on someone and certainly how it had an effect on [Scheuing].'

In fact, Ms. Terrell would struggle to explain to the jury how

the mitigating factors affected [Scheuing]."

(C. 925 (citations omitted).) Scheuing claimed that, if his counsel had

"outlined a coherent mitigation narrative, and explained how the

evidence would mitigate [Scheuing's] culpability, there is a reasonable

probability that [he] would not have been sentenced to death." (C. 925-

26.)

This circuit court dismissed this claim as follows:

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"The prosecutor informed Scheuing's trial counsel

during a pretrial hearing that the State would present

evidence during the penalty phase to prove that he was on

parole at the time of the murder to establish an aggravating

circumstance. Rather than have jurors wonder or speculate

about what crimes Scheuing had committed in Georgia that

landed him on parole, his counsel informed them that he had

been convicted of nonviolent crimes. See Straight v.

Wainwright, 772 F.2d 674, 681 (11th Cir. 1985) (counsel was

not ineffective for failing to object to a question on cross-

examination, where counsel was pursuing a plan of being

'truthful and open' with the jury). This Court finds that

Scheuing's counsel's performance was neither deficient nor

prejudicial.

"This Court finds that this ineffectiveness claim is

without merit; therefore, it is denied. Rule 32.7(d), ALA. R.

CRIM. P.

"Scheuing also asserts that his trial counsel were

ineffective for failing to explain, or have Ms. Terrell

adequately explain, to the jury how the mitigating

circumstances affected him. Scheuing fails, however, to

proffer in his petition specifically what his counsel should

have said during opening statements or what Ms. Terrell

should have said during her testimony. He also fails to

specifically plead in his petition why there is a reasonable

probability the outcome would have been different if his

counsel or Ms. Terrell had made additional or different

statements during the penalty phase of his trial. See Van Pelt

v. State, 202 So. 3d 707, 735 (Ala. Crim. App. 2015) ('Van Pelt

fails to allege with any specificity what counsel should have

argued and how those particular arguments would have

changed the result of his trial.').

"This Court finds that this ineffectiveness claim is

deficiently pleaded; therefore, it is summarily dismissed. Rule

32.7(d), ALA. R. CRIM. P."

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(C. 1260-62 (some citations omitted).)

The circuit court properly dismissed this claim of ineffective

assistance of counsel. This Court has explained:

"In People v. Leeper, 317 Ill. App. 3d 475, 251 Ill. Dec.

202, 740 N.E.2d 32 (2000), the Illinois Court of Appeals made

the following observations concerning an attorney's

performance during opening statements:

" '[Counsel] made only a perfunctory opening

statement and closing argument. Counsel is not

required by law to make an opening statement at

all. Pietsch v. Pietsch, 245 Ill. 454, 456-57, 92 N.E.

325, 326 (1910). [Counsel's] opening statement

was short; however, it explained what [counsel], in

his professional judgment, thought was necessary.

Specifically, [counsel] explained that the burden of

proof was on the State and suggested that the jury

listen carefully to both versions of the events.

[Counsel's] closing argument was also short, but in

light of the amount of evidence presented, it was

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