albarran state motion to dismiss

8/12/2019 Albarran State Motion to Dismiss

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

BENITO ALBARRAN, ))

Petitioner, )

)v. ) CC-06-1522.60

)STATE OF ALABAMA, )

)Respondent. )

STATES ANSWER AND MOTION FOR DISMISSAL OF ALBARRANSAMENDED RULE 32 PETITION

Comes now the State of Alabama, Respondent in the

above-styled cause, and moves this Honorable Court to

summarily dismiss the amended Rule 32 petition filed on

behalf of the petitioner, Benito Albarran. As grounds for

its motion, the State says the following:

LEGAL PRINCIPLES CONCERNING RULE 32

Rule 32.3, Ala. R. Crim. P., provides:

The petitioner shall have the burden ofpleading and proving by a preponderance of theevidence the facts necessary to entitle thepetitioner to relief. The state shall have theburden of pleading any ground of preclusion, butonce a ground of preclusion has been pleaded, thepetitioner shall have the burden of disproving its

existence by preponderance of the evidence.

Further, Rule 32.6(b), Ala. R. Crim. P., states:

The petition must contain a clear andspecific statement of the grounds upon whichrelief is sought, including full disclosure of the

ELECTRONICALLY FILED7/28/2014 9:04 AM

47-CC-2006-001522.60CIRCUIT COURT OF

MADISON COUNTY, ALABAMJANE C. SMITH, CLERK


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factual basis of those grounds. A bare allegationthat a constitutional right has been violated andmere conclusions of law shall not be sufficient towarrant any further proceedings.

The burden of pleading under Rule 32.3 and Rule

32.6(b) is a heavy one. McNabb v. State, 991 So. 2d 313,

318 (Ala. Crim. App. 2007). Accordingly, under Rules 32.3

and 32.6(b), [t]he full factual basis for the claim must

be included in the petition itself. McNabb, 991 So. 2d at

318.

Accordingly, Albarran is not entitled to an evidentiary

hearing unless he first meets the pleading requirements of

Rule 32.3 and Rule 32.6(b) for Rule 32.6(b) requires that

the petition itself disclose the facts relied upon in

seeking relief. Boyd v. State, 913 So. 2d 1113, 1125-26

(Ala. Crim. App. 2003) (emphasis in original). For, as the

Court of Criminal Appeals has held, it is not the pleading

of a conclusionwhich, if true, entitle[s] the petitioner

to relief. Boyd, 913 So. 2d at 1125. Instead, [i]t is

the allegation of factsin pleading which, if true, entitle

a petitioner to relief. After factsare pleaded, which, if

true, entitle the petitioner to relief, the petitioner is

then entitled to an opportunity, as provided in Rule 32.9,


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Ala. R. Crim. P., to present evidence proving those alleged

facts. Id. Emphasis in original.

Furthermore, [a]n evidentiary hearing on a [Rule 32]

petition is required only if the petition is meritorious

on its face. Bracknell v. State, 883 So. 2d 724, 727

(Ala. Crim. App. 2003) (quoting Ex parte Boatwright, 471

So. 2d 1257, 1258-59 (Ala. 1985)). The Alabama Supreme

Court has stated that:

A petition for [postconviction relief] ismeritorious on its face only if it contains aclear and specific statement of the grounds uponwhich relief is sought, including full disclosureof the facts relied upon (as opposed to a generalstatement concerning the nature and effect ofthose facts), sufficient to show that thepetitioner is entitled to relief if those factsare true.

Ex parte Clisby, 501 So. 2d 483, 486 (Ala. 1986) (internal

citations omitted). Thus, Albarran is not automatically

entitled to an evidentiary hearing on any of the

allegations presented in his petition.

Furthermore, a circuit court may summarily dismiss a

claim on the merits in certain cases. For instance,

[w]here a simple reading of the petition for post-

conviction relief shows that, assuming every allegation of

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


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is precluded, the circuit court [may] summarily dismiss

that petition. Bryant v. State, CR080405, 2011 WL

339585, at *6 (Ala. Crim. App, February 4, 2011).

Additionally, a judge who presided over the trial or other

proceeding and observed the conduct of the attorneys at the

trial or other proceeding need not hold a hearing on the

effectiveness of those attorneys based upon conduct that he

observed. Boyd, 913 So. 2d at 1126 (quoting Ex parte

Hill, 591 So. 2d 462, 463 (Ala. 1991)). Accordingly, in

assessing Albarrans claims in this case, [i]f the circuit

judge has personal knowledge of the actual facts underlying

the allegations in the petition, he may deny the petition

without further proceedings so long as he states the

reasons for the denial in a written order. Id.

LEGAL PRINCIPLES CONCERNING INEFFECTIVE ASSISTANCE OFCOUNSEL

To prevail on his ineffective assistance of counsel

claims, Albarran must satisfy the two-part test of

Strickland v. Washington, 466 U.S. 668 (1984). Albarran

must show that: (1) counsels performance was deficient

because it fell below an objective standard of

reasonableness; and, (2) that the deficient performance


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prejudiced the petitioner. Id. at 687. In promulgating

that standard, the Court held:

First, the defendant must show that counsels

performance was deficient. This requires showingthat counsel made errors so serious that counselwas not functioning as the counsel guaranteedthe defendant by the Sixth Amendment. Second, thedefendant must show that the deficient performanceprejudiced the defense. This requires showingthat counsels errors were so serious as todeprive the defendant of a fair trial, a trialwhose result is reliable.

Id.

Establishing ineffective assistance of counsel under

Strickland is difficult. As the United States Supreme

Court has recently held, [s]urmounting Strickland's high

bar is never an easy task. Harrington v. Richter, 131

S.Ct. 770, 788 (2011) (citing Padilla v. Kentucky, 130

S.Ct. 1473, 1485 (2010)). Under the first prong, the

standard for judging counsels performance is

reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 688. There is a strong

presumption that counsels conduct falls within the wide

range of reasonable professional assistance. Id. at 689.

Review of counsels conduct is appropriately highly

deferential because the craft of trying cases is far from

an exact science; in fact, it is replete with uncertainties


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and obligatory judgment calls. Bolender v. Singletary, 16

F.3d 1547, 1557 (11th Cir. 1994). Otherwise, [a]n

attorney looking at a trial transcript can always find

places where objections could have been made. Hindsight is

not always 20/20, but hindsight is always ineffective in

evaluating performance of trial counsel. Tarver v. State,

629 So. 2d 14, 19 (Ala. Crim. App. 1993). Accordingly,

because counsels conduct is presumed to have been

reasonable, the analysis under Strickland has nothing to

do with what the best lawyers would have done ... [or] what

most good lawyers would have done. Grayson v. Thompson,

257 F.3d 1194, 1216 (11th Cir. 2001). Instead, the

question is whether some reasonable lawyer at the trial

could have acted, in the circumstances, as defense counsel

acted at trial. Id.

For that reason, to show that counsels performance

was unreasonable, the petitioner must establish that no

competent counsel would have taken the action that his

counsel did take. Id. (Emphasis in original). Thus,

counsels performance will not be found deficient if a

reasonable lawyer could have decided, under the same

circumstances, not to investigate or present particular


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evidence. See Crawford v. Head, 311 F.3d 1288, 1312 (11th

Cir. 2002) (This court agrees that testimony from a mental

health expert ... would have been admissible and might be

considered to be mitigating. However, trial counsel chose

to pursue a strategy of focusing the jurys attention on

the impact of a death sentence on petitioners family.

This court will not second guess trial counsels deliberate

choice.); Housel v. Head, 238 F.3d 1289, 1295 (11th Cir.

2001) ([A]bandoning one defense in favor of another that

counsel reasonably perceives to be more meritorious is not

deficient performance, even if it means that the jury does

not hear certain kinds of mitigation evidence.).

Under the prejudice prong of Strickland, [i]t is not

enough for the defendant to show that the errors had some

conceivable effect on the outcome of the proceeding. 466

U.S. at 693. Instead, [t]he question is whether there is

a reasonable probability that, absent the errors, the

sentencer ... would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death. Id. at 695. Thus, in determining whether,

without the errors, there is a reasonable probability that

the balance of aggravating and mitigating circumstances


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would have been different, a reviewing court must consider

the aggravating circumstances that were proved beyond a

reasonable doubt at trial. See also Bolender v.

Singletary, 16 F.3d 1547, 1556-1557 (11th Cir. 1994).

In a Rule 32 proceeding, the petitioner has the burden

of pleading a clear and specific statement of the grounds

upon which relief is sought, including full disclosure of

the factual basis for those grounds. Ala. R. Crim. P.

32.6(b), 32.3. Thus, the petitioner must include in his

petition a full disclosure of the facts entitling him to

relief under Strickland. If the petitioner fails to

specifically plead facts that would, if true, establish

both the deficient performance prong and the prejudice

prong of Strickland, then summary dismissal is appropriate

under Rule 32.6(b) and 32.7(d) of the Alabama Rules of

Criminal Procedure. See Bracknell v. State, 883 So. 2d

724, 727-28 (Ala. Crim. App. 2003).

RESPONSE TO PROCEDURAL HISTORY

The State does not dispute Albarrans general

procedural history of the case with the exception that

Albarran incorrectly states that the trial court did not

enter an order setting aside, vacating, modifying, or


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annulling its January 31, 2008 order. (Pet. at 4.) The

record reveals that the trial court granted Albarrans

motion on April 10, 2008 and orally vacated and set aside

the January 31, 2008 order transferring the trial to

Calhoun County. (R. 337.)

RESPONSE TO THE GROUNDS FOR PETITION

In paragraphs 23-33, Albarran raises several

introductory arguments concerning the claims raised in his

Rule 32 petition. The State denies that Albarrans

constitutional rights were violated and further denies the

specific arguments raised within these paragraphs. To the

extent that Albarran attempts to excuse any deficiencies in

his Rule 32 petition on the basis of lack of funds or

experts (Pet. at 9), such a claim is meritless and does not

relieve Albarran of his duty to plead the full factual

basis of each of his claims in his Rule 32 petition. See

Boyd v. State, 913 So. 2d 1113, 1125-26 (Ala. Crim. App.

2003) (Rule 32.6(b) requires that the petition itself

disclose the facts relied upon in seeking relief.).

Moreover, Albarrans attempt to incorporate into his

Rule 32 petition any yet-to-be-filed pleadings, affidavits,

or witness lists which may be served before, during, or


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RESPONSE TO GROUNDS SUPPORTING ALBARRANSAMENDED RULE 32 PETITION

I. ALBARRANS CLAIM THAT HIS CONVICTION AND SENTENCE AREUNCONSTITUTIONAL BECAUSE THE TRIAL COURT WAS WITHOUT

JURISDICTION TO TRY THE CASE IN MADISON COUNTY.

In paragraphs 34-60, Albarran alleges that the trial

court did not have jurisdiction to try his case in Madison

County. Although admitting that a trial court transferring

a case from a particular county retains jurisdiction to set

aside, vacate, modify, or annul the order transferring the

place of trial, Albarran contends that the trial courts

January 31, 2008 order transferring the trial to Calhoun

County divested the trial court in Madison County of

jurisdiction. Albarran further contends that the trial

court never set aside, vacated, modified, or annulled its

order transferring the case to Calhoun County.

This claim should be summarily dismissed because it is

refuted by the record and is without merit. Ala. R. Crim.

P. 32.7(d); McNabb v. State, 991 So. 2d 313, 320 (Ala.

Crim. App. 2007)(Thus, because this claim was clearly

refuted by the record, summary denial was proper pursuant

to Rule 32.7(d), Ala. R. Crim. P.). Here, the record

demonstrates that the trial court properly vacated and set

aside the order transferring the trial to Calhoun County.


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After granting an order to change the venue of a trial,

a trial court still retains control over the order to

modify, change, or vacate it. See Ex parte Morrow, 66 So.

2d 130, 133 (Ala. 1953). Specifically, the order changing

the place of trial may be set aside, vacated, modified, or

annulled by the court making it. Morrow, 66 So. 2d at

133.

On January 31, 2008, the trial court granted Albarrans

Motion for Change of Venue and transferred the trial from

Madison County to Calhoun County. (C. 240.) However, on

April 3, 2008, Albarran filed a waiver of venue for his

trial to be held in Madison County. Id. at 246. Albarran

contends that this waiver related back to his original

request to change venue from Madison County. But in any

event, on April 10, 2008, the trial court conducted a

hearing on this matter in which Albarran moved both to

continue his trial and to have the trial court return his

trial to Madison County. (R. 334-336.) The trial court

then granted Albarrans request. Id. at 337. Thus, the

trial courts granting of Albarrans request on April 10,

2008 vacated and set aside the January 31, 2008 order

transferring the trial to Calhoun County.


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Albarrans allegation that the trial court never set

aside its January 31, 2008 order is incorrect. Although

the trial court noted that Albarran waived the change of

venue, the record demonstrates that Albarrans counsel made

a motion to both continue the trial and to return venue of

the trial to Madison County which the trial court granted.

(See R. 337-388)(And we do not make such a motion lightly

and are keenly aware of the logistics of all of this and

appreciate the Courts consideration.)(Emphasis added.)

While Albarrans allegation on the fact that trial counsel

also used the word waiver in making his request, the

record refutes his allegation. It was clear from the

record that trial counsel made a request to return venue to

Madison County and the trial court granted that request and

orally vacated the order transferring venue to Calhoun

County.

Finally, pursuant to Rule 10.3 of the Alabama Rules of

Criminal Procedure, the trial court continued to properly

preside over Albarrans case after the January 31, 2008

order transferring the trial to Calhoun County as well as

after the January 31, 2008 was set aside on April 10, 2008.

Moreover, the record does not indicate that the case was


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ever docketed in Calhoun County or that the file or any

records were ever transmitted to Calhoun County as required

by statute. See Ala. Code 15-2-25. Instead, the record

indicates that Albarrans case remained in Madison County.

Thus, because this claim is both meritless and refuted by

the record, it is due to be dismissed. Ala. R. Crim. P.

32.7(d).

II. ALBARRANS CLAIM THAT HIS TRIAL COUNSEL WAS

INEFFECTIVE.

In paragraphs 61-491, Albarran alleges that his trial

counsel rendered ineffective assistance of counsel. As an

initial matter, paragraphs 61-67 merely serve as

introductory paragraphs to the sub-claims raised in his

petition. These paragraphs fail to allege a specific claim

under Rule 32.1 and should be summarily dismissed. These

paragraphs further fail to allege any specific facts that,

if true, would establish how trial counsels performance

was deficient or how Albarran was prejudiced. See Ala. R.

Crim. P. 32.6(b). Therefore, these paragraphs should be

summarily dismissed. Ala. R. Crim. P. 32.7(d).

Additionally, Albarrans reliance on the American Bar

Association (A.B.A.) Guidelines as a standard for

determining what constitutes an appropriate investigation


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is misplaced. This attempt to inject the A.B.A. Guidelines

as a standard for ineffectiveness has never been recognized

in Alabama. Alabama courts have never adopted the A.B.A.

Guidelines, nor are such guidelines determinative of

whether counsels performance was effective; [r]ather, the

two-pronged analysis set forth in Strickland remains the

standard for deciding ineffective-assistance-of-counsel

claims. Jones v. State, 43 So. 3d 1258, 1278 (Ala. Crim.

App. 2007).

Moreover, as the United States Supreme Court has held,

Strickland stressed, however, that American Bar

Association standards and the like are only guides to

what reasonableness means, not its definition. Bobby v.

Van Hook, 130 S.Ct. 13 (2009) (quoting Strickland v.

Washington, 466 U.S. 668, 688 (1984)). Instead, the

Federal Constitution imposes one general requirement: that

counsel make objectively reasonable choices. Id., quoting

Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000). Therefore,

Albarrans suggestion that the A.B.A. Guidelines serve as a

standard for his counsels performance is without merit or

support and should be rejected by this Court.


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Albarrans claim of ineffective assistance of counsel

is comprised of several sub-claims. Accordingly, each of

these sub-claims will be addressed by the State below as

follows:

A. The claim that trial counsel was ineffective inpre-trial preparation.


counsel was ineffective in pre-trial preparation and

litigation. This sub-claim contains additional sub-claims

which are addressed individually below.

1. The claim that trial counsel failed to secureAlbarrans presence at critical proceedings.

In paragraphs 68-77, Albarran contends that his trial

counsel was ineffective for failing to secure his presence

at critical pre-trial and trial proceedings. Albarran

alleges that his trial counsel failed to secure his

presence for a hearing on his motion to change venue, two

ex partehearings, and during the jurys visit to the crime

scene during trial. This claim is due to be dismissed for

several reasons.

First, this claim should be dismissed because it is

facially meritless and fails to state a material issue.

Ala. R. Crim. P. 32.7(d). Alabama courts have held that


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if a capital defendant is absent from noncritical stages of

trial and if his presence would not have benefitted his

defense, no error occurs. Burgess v. State, 723 So. 2d

742, 760 (Ala. Crim. App. 1997) (holding that no error

occurred where defendant was not present for two pretrial

motion hearings and in-chambers discussions with counsel

from both parties).

Here, the proceedings complained of by Albarran were

noncritical stages of trial. The proceedings simply

involved a pre-trial motion hearing and an ex partemotions

hearing and did not involve any critical proceedings. In

fact, at the pre-trial motion hearing on January 11, 2008,

the circuit court granted Albarrans motion to change

venue. (R. 182-183.) Thus, even assuming these

allegations as true, Albarran cannot establish that he is

entitled to any relief.

Moreover, although Albarran contends that he was not

present for the April 10, 2008 hearing in which the trial

court set aside the change of venue and further contends

that his counsel did not inform him of their decision to

waive change of venue (Pet. at 30), the record refutes this

claim. The record specifically demonstrates that Albarran


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agreed to set aside the change of venue and waived his

presence at the hearing. (C. 246; see also R. 335)

([f]irst of all, in behalf of Defendant Albarran, he

waives his presence at this hearing.) Thus, because this

claim is refuted by the record and further fails to state a

material issue, it is due to be summarily dismissed. Ala.

R. Crim. P. 32.7(d).

Second, in the alternative, this claim should be

summarily dismissed because it is insufficiently pleaded.

Ala. R. Crim. P. 32.6(b). In particular, Albarran fails to

specifically plead how he was prejudiced under Strickland

by his absence at these pre-trial hearings. Albarran

alleges in a conclusory fashion that his absence rendered

him incapable of participating and assisting counsel in

his defense. (Pet. at 32.)

Yet Albarran fails to plead how he specifically would

have participated in these hearings or assisted his

counsel. Albarran also fails to plead any specific facts

concerning the actions or specific role he would have taken

during the hearings. In fact, Albarran fails to plead that

any action took place at the hearings that was against his


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desire or that any action took place that unfairly

prejudiced him.

For example, although Albarran complains that he was

not present during a February 6, 2008 ex partehearing, he

fails to specifically plead what events occurred during the

hearing, what actions he would have taken during the

hearing, or that what transpired during the hearing was

against his wishes. Most importantly, Albarran has failed

to plead any facts that, if true, would show a reasonable

probability that the outcome of his trial would have been

different had he been present for these noncritical

hearings. Accordingly, Albarrans claim is nothing but a

bare, conclusory allegation. See Hyde v. State, 950 So. 2d

344, 356 (Ala. Crim. App. 2006)(A bare allegation that

prejudice occurred without specific facts indicating how

the petitioner was prejudiced is not sufficient.).

Therefore, because this claim is insufficiently pleaded and

no purpose would be served by any further proceedings, it

is due to be dismissed. Ala. R. Crim. P. 32.7(d).

2. The claim that trial counsel was ineffectivefor failing to litigate Albarrans mentalretardation claim prior to trial.


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counsel was ineffective for failing to request a pre-trial

determination of his claim that he is mentally retarded.


insufficiently pleaded. Ala. R. Crim. P. 32.6(b).

Albarrans claim is nothing but a bare, conclusory

assertion. Albarran fails to plead any specific facts

that, if true, would establish that he was prejudiced under

Strickland by the failure to litigate his mental

retardation claim prior to trial.

As the record demonstrates, Albarran fully litigated

his mental retardation claim during the sentencing hearing

after which the trial court denied his Atkins claim. (R.

4327-4503.) The Alabama Court of Criminal Appeals

affirmed, holding that Albarran failed to meet his burden

of establishing that he was mentally retarded. Albarran v.

State, 96 So. 3d 131, 199-200 (Ala. Crim. App. 2011).

Albarran utterly has failed to plead any specific facts

that, if true, would show how there is a reasonable

probability that he would have been found mentally retarded

had his trial counsel litigated the issue pre-trial as

opposed to during the sentencing hearing. Notably,


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Albarran fails to plead any facts that, if true, would call

into question the trial courts finding that he was not

mentally retarded. Nor does he plead any new facts that,

if true, would establish a reasonable probability that he

would have been found to be mentally retarded regardless

of when the issue was raised. Instead, Albarran merely

asserts in a conclusory fashion that the trial court would

have found him to be mentally retarded if the claim was

raised pre-trial, without pleading any specific facts that,

if true, would explain how such a finding would have been

made.

Albarran also alleges that he was prejudiced by not

litigating the mental retardation claim pre-trial because

the trial court considered evidence presented during the

guilt and penalty phases in ruling on his Atkins claim. As

an initial matter, Albarran fails to plead what specific

evidence was presented during the guilt and penalty phases

that he contends the trial court should not have

considered. In any event, Albarran has failed to

specifically plead any facts that, if true, would establish

that this same evidence could not have otherwise still been

presented in a pre-trial Atkins hearing.


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score of 71. (R. 2849-2850.) Moreover, the trial court

considered the evidence Albarran presented concerning his

alleged mental retardation as a mitigating circumstance in

its sentencing determination. (C. 462.)

Accordingly, Albarrans claim is nothing but a bare

allegation and it should be dismissed. Albarran has failed

to plead any facts that, if true, would establish a

reasonable probability that he would have been found to

mentally retarded had his trial counsel raised the Atkins

claim pre-trial. Moreover, Albarran has failed to

specifically plead how his trial counsel was deficient for

litigating his Atkins claim in this manner given both that

the procedures for litigating Atkins claims were relatively

new and that there was no absolute requirement to litigate

an Atkins claim pre-trial as opposed to during a sentencing

hearing. See Smith v. State, No. 1060427, 2007 WL 1519869

(Ala. May 25, 2007). Therefore, because this claim is

insufficiently pleaded and no purpose would be served by

any further proceedings, it should be summarily dismissed.

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


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3. The claim that trial counsel failed toadequately investigate and litigate Albarransincompetence to stand trial.


counsel was ineffective for failing to request a pre-trial

determination of his competence to stand trial and for

failing to retain an expert to conduct an independent

competency evaluation. This claim should be summarily

dismissed for several reasons.

First, this claim is insufficiently pleaded. Ala. R.

Crim. P. 32.6(b). Albarran has failed to plead specific

facts that, if true, would show prejudice under Strickland.

Specifically, Albarran has failed to plead facts that, if

true, would show he was actually incompetent.

Although Albarran generally alleges that he was

incompetent to stand trial, he fails to specifically plead

facts or evidence that could have been presented that would

have risen to the level of demonstrating incompetence to

stand trial. For example, Albarran alleges one of his

experts, Dr. Weinstein will testify that the court-ordered

competency evaluation conducted at Taylor Hardin prior to

trial was inadequate. (Pet. at 46.) Yet Albarran fails to

plead what facts would show that he was actually


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incompetent. Simply criticizing the evaluation done at

trial and alleging that the evaluation at trial was

inadequate according to the opinion of one expert does not

meet Albarrans burden of pleading clear and specific facts

that, if true, would show he was actually incompetent. See

Hyde, 950 So. 2d at 356 ([a] bare allegation that

prejudice occurred without specific facts indicating how

the petitioner was prejudiced is not sufficient.).

Moreover, Albarran contends that at a minimum, his

trial counsel should have conducted further interviews and

administered further tests concerning competency. (Pet. at

47.) Yet he fails to specifically plead what information

he would have learned from further interviews or what the

results of the additional tests and assessments would have

been. Thus, because this claim is a bare allegation and

fails to plead a full factual basis for relief, it is

insufficiently pleaded and due to be dismissed. Ala. R.

Crim. P. 32.7(d).

Alternatively, this claim should be dismissed because

it is facially meritless and thus, fails to state a

material issue. Ala. R. Crim. P. 32.7(d). Albarran has

failed to plead a claim which would entitle him to relief


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because, even assuming every allegation as true, he cannot

establish that he was prejudiced under Strickland. See

Bryant v. State, CR080405, 2011 WL 339585, at *6 (Ala.

Crim. App, February 4, 2011)([w]here a simple reading of

the petition for post-conviction relief shows that,

assuming every allegation of the petition to be true, it is

obviously without merit or is precluded, the circuit court

[may] summarily dismiss that petition.).

Specifically, Albarrans claim is meritless because,

even assuming his allegations as true, he has failed to

plead facts that could show that he was in fact incompetent

to stand trial. Rule 11.1 of the Alabama Rules of Criminal

Procedure states that [a] defendant is mentally

incompetent to stand trial or to be sentenced for an

offense if that defendant lacks sufficient present ability

to assist in his or her defense by consulting with counsel

with a reasonable degree of rational understanding of the

facts and the legal proceedings against the defendant.

Even assuming all of his allegations as true, Albarran has

failed to plead a claim that would show that he lacked the

ability to assist in his defense or consult with counsel


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with a reasonable degree of understanding. Thus,

Albarrans claim is facially meritless.

Albarrans claim is limited to essentially restating

facts from the record. But even assuming the facts from

the record and his allegations as true, Albarran has failed

to plead any facts, evidence or potential reports or

testimony of any kind that, if true, would establish he was

actually incompetent. Moreover, Albarran has failed to

plead any new facts or allegations that, if true, would

establish that he was incompetent.

As the record indicates, Albarran was evaluated prior

to trial at Taylor Hardin Hospital and was found to be

competent to stand trial. (Supp. C. 840-841.) No expert

opined at trial that he was incompetent to stand trial, nor

has Albarran pleaded any additional expert testimony or

evidence that, even assumed as true, would show he was

incompetent. Although Albarran points to different facts

which he contends suggest that he might have been

incompetent, even assuming these facts as true, these facts

would not have risen to the level of incompetency.

At best, Albarran points to the fact that during his

evaluation at Taylor Hardin, he scored a 60% on one


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competency evaluation test but later scored a 100% the next

day. (Pet. at 42; see R. 287-88.) Albarran then argues

that these facts suggest incongruities in his competency

evaluation from Taylor Hardin. But, even assuming these

facts as true, this does not establish a reasonable

probability that he would have been found incompetent had

his trial counsel moved for a pre-trial competency hearing.

The fact that Albarran had a lower score on one competency

test, even if true, does not demonstrate that he could not

assist or consult with counsel with a reasonable degree of

understanding. Ala. R. Crim. P. 11.1.

Likewise, even assuming as true Albarrans allegation

that Dr. Weinstein told trial counsel that he believed

Albarran to be incompetent and that a psychiatrist should

be retained does not show that Albarran was incompetent to

stand trial. (Pet. at 41.) Moreover, even assuming as

true the fact that Dr. Weinstein believed that Albarran was

confused at the time he spoke with him about the insanity

defense does not show how Albarran was incompetent. (Pet.

at 43.) Albarran has failed to plead how the fact a

defendant may not understand the nuances of a legal defense

something that would not be unusual for any defendant


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facing a complicated trial shows that he generally was

unable to assist or consult with his counsel with a

reasonable degree of rational understanding of the facts

and the legal proceedings against the defendant. Ala. R.

Crim. P. 11.1.

None of Albarrans allegations, even assumed as true,

could establish that he was incompetent. Moreover, nothing

in the record supports such a finding. Thus, Albarrans

claim is meritless on its face and he cannot establish a

reasonable probability that the result of his trial would

have been different had his trial counsel moved for a pre-

trial competency hearing where, even assuming his

allegations as true, he cannot establish that he was

incompetent.

Likewise, this claim is without merit and fails to

state a material issue of fact or law that would entitle

him to any relief because, even assuming his allegations as

true, Albarran has failed to plead a claim that would

establish that his trial counsel was deficient. Ala. R.

Crim. P. 32.7(d); see Bryant, 2011 WL 339585, at *6

([w]here a simple reading of the petition for post-

conviction relief shows that, assuming every allegation of


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

is precluded, the circuit court [may] summarily dismiss

that petition.).

Even assuming as true the allegation that trial counsel

did not request a pre-trial determination of competency,

trial counsel could not be deficient where there was no

basis for requesting a competency hearing at any point

during the trial. Here, the record does not indicate that

Albarran was incompetent and he further failed to plead any

facts that, even assumed as true, would establish that he

was in fact incompetent. See Dunaway v. State, CR-06-0996,

2009 WL 4980320, at *23 (Ala. Crim. App. December 18,

2009)(Counsel cannot be held ineffective for failing to

raise an issue that has no merit.).

Although trial counsel did not specifically request a

pre-trial competency hearing, the record demonstrates that

trial counsel thoroughly investigated Albarrans mental

health prior to trial. Furthermore, while trial counsel

could have moved for a pre-trial competency hearing, even

assuming his allegations as true, trial counsel could not

have been deficient for failing to take this step given

that the extensive examinations into Albarrans mental-


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health did not reveal that he was incompetent. In fact,

the evidence in the record demonstrated that he was

competent.

Here, prior to trial, trial counsel retained Dr.

Ricardo Weinstein, a clinical, forensic, and

neuropsychologist from California to evaluate Albarran and

to determine his present cognitive functioning. (Supp.

C. 1004.) This evaluation consisted of 16 hours of face to

face contact with Albarran as well as the administration of

numerous tests and diagnostic tools. Id. at 1004-1005.

Trial counsel also retained a forensic psychiatrist

from California, Dr. J. Arturo Silva, who was fluent in

Spanish and conducted an extensive evaluation of Albarran.

(Supp. C. 706-748.) Neither of Albarrans experts opined

that Albarran was incompetent to stand trial. In fact, the

reports from both experts indicate that Albarran was aware

of his surroundings as well as the process to which he was

involved and was capable of communicating and participating

in his trial. Specifically, Dr. Silva indicated that

Albarran had a good understanding of the evaluation (Supp

C. 704) and Dr. Weinstein noted that Albarran related well

to the evaluator, he was open, disclosing and cooperative


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and that he was verbally articulate and no speech or

language problems were identified. Id. at 1006-1007.

Finally, Albarran was also received a court-ordered

evaluation at Taylor Hardin Medical Facility pursuant

conducted by Dr. James F. Hooper who found that Albarran

was competent to stand trial. Id. at 841.

Although Albarran complains that his trial counsel did

not specifically request a competency evaluation in

addition to the extensive forensic psychological evaluation

conducted by Dr. Silva, he fails to plead what facts from

the mental evaluations conducted by his experts prior to

trial would have alerted trial counsel to conduct yet

another independent evaluation where a court-ordered

evaluation had already found that he was competent to stand

trial.

Notably, Albarran incorrectly suggests that Dr. Silva

suggested that he was incompetent to stand trial based on

cultural and language factors. (Pet. at 43.) This notion

is refuted by the record and, in fact, Dr. Silva noted that

cultural and language factors alone cannot result in

incompetency primarily because language and cultural

factors only result in the defendants ignorance of the


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law. (Supp. C. 232.) Although Dr. Silva suggested that

these cultural factors, combined with Albarrans alleged

mental disorders, compromised his ability to think

rationally at the time of waived his Miranda warnings, Dr.

Silva never opined that Albarran was incompetent to stand

trial. Id.

Thus, even assuming his allegations as true, Albarrans

claim is facially meritless. As pleaded, Albarran has

failed to plead a claim that would establish that his trial

counsel was deficient or unreasonable for not moving for a

pre-trial competency hearing where there was no evidence in

the record which supported a finding that he was

incompetent and where Albarran has failed to plead any

additional facts that, if true, would show that he was

incompetent. Although Albarran argues that Dr. Weinsteins

testimony during the suppression hearing that Albarran was

likely incompetent at the time of his arrest supports his

claim, this fact, even accepted as true, does not suggest a

bona fide doubt as to his incompetence that obliged trial

counsel to move for a pre-trial competency hearing.

Notably, contrary to Albarrans contention, Dr.

Weinstein never testified or opined that Albarran was


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incompetent to stand trial. Instead, Dr. Weinstein only

testified that Albarran was not capable or competent to

waive his Miranda rights at the time he was interviewed

based on the allegation that his rights were not clearly

explained and based on the allegation that Albarran did not

have a clear understanding of his rights due to cultural

differences. (R. 1810-1811.) But no expert ever

testified that Albarran actually was incompetent, nor has

Albarran pled any additional facts in his petition, that,

if true, would establish that he was incompetent to stand

trial.

As the record indicates, trial counsel engaged in a

complete investigation into Albarrans mental health. Yet,

as pleaded, Albarran has failed to identify any evidence or

further allegations that would show that he was

incompetent. Thus, even assuming his allegations as true,

Albarran has failed to plead a claim that would establish

that trial counsel was objectively unreasonable or

deficient for not pursuing further investigation or a pre-

trial hearing on his competency to stand trial. See

Broadnax v. State, CR101481, 2013 WL 598056, at *12 (Ala.

Crim. App. Feb. 15, 2013)(The reasonableness of the


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investigation involves not only the quantum of evidence

already known to counsel, but also whether the known

evidence would lead a reasonable attorney to investigate

further.)(quoting St. Aubin v. Quarterman, 470 F.3d 1096,

1101 (5th Cir. 2006)). Therefore, because this claim is

meritless on its face and no purpose would be served by any

further proceedings, this claim should be summarily

dismissed. Ala. R. Crim. P. 32.7(d).

Finally, to the extent that Albarran contends that his

trial counsel should have retained a bilingual expert to

specifically address his competence to stand trial, this

claim is insufficiently pleaded. Ala. R. Crim. P. 32.6(b).

Albarran utterly fails to plead the name of a specific

expert who his trial counsel should have retained to

evaluate his competency. Nor does Albarran specifically

plead any facts concerning what this unnamed exert would

have found, what this unnamed experts testimony would have

been, or that the unnamed expert even would have found

Albarran to be incompetent. Most importantly, Albarran

fails to plead specific facts concerning what evidence this

unnamed expert would have identified that would have

supported a finding that he was incompetent.


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The Alabama Court of Criminal Appeals has held that a

petitioner fails to meet the specificity requirements of

Rule 32.6(b), Ala. R. Crim. P., when the petitioner fails

to identify an expert by name or plead the contents of that

expert's expected testimony. Lee v. State, 44 So. 3d

1145, 1166-1167 (Ala. Crim. App. 2009); see also Daniel v.

State, 86 So. 3d 405, 425-426 (Ala. Crim. App. 2011).

Simply the fact that Albarran pled that a mental-health

expert should have been retained does not meet the

requirements of Rule 32.6(b). Instead, Albarran was

required to specifically identify by name an expert who

could have testified at his trial and what that experts

testimony would have been. See Daniel, 86 So. 3d at 425-

426. Because he failed to meet this requirement, his claim

is insufficiently pleaded and should be dismissed. Ala. R.

Crim. P. 32.7(d).

4. The claim that trial counsel was ineffectivefor waiving change of venue and permitting thetrial court to conduct venue proceedings offthe record and outside Albarrans presence.


counsel was ineffective for waiving his change of venue,

for waiving venue outside his presence and without

consulting him, and for failing to conduct critical


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proceedings relating to the change of venue issue on the

record. Albarran contends that his trial counsel was

ineffective in litigating the change of venue issue and

waiving venue in Madison County because the evidence of

pre-trial publicity established both presumptive prejudice

and actual prejudice. Because Albarrans claim contains

several sub-parts, the State will address each of these

sub-parts individually below.

a. The claim regarding change of venue.

First, in regard to the claim concerning the change of

venue, this entire claim should be dismissed because it is

facially without merit and fails to state a material issue

of fact or law. Ala. R. Crim. P. 32.7(d). Even assuming

his allegations as true, Albarran cannot establish that his

trial counsel was deficient under Strickland. Alabama

courts have consistently held that generally the decision

not to request a change of venue is not ineffective

assistance of counsel, but is rather a matter of trial

strategy. Yeomans v. State, CR100095, 2013 WL 1284361,

at *10 (Ala. Crim. App. March 29, 2013) (quoting Cox v.

State, 660 So. 2d 233, 235 (Ala. Crim. App. 1994)). Given

that whether to request a change of venue is a matter


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reserved for the judgment of trial counsel, particularly

here where the record indicates that it was trial counsels

original intention to try the case in Madison County (R.

175), Albarran has failed to plead a material issue and his

claim should be dismissed. Ala. R. Crim. P. 32.7(d).

To the extent that Albarran alleges his trial counsel

was ineffective in waiving change of venue because he

established presumptive prejudice, this claim is facially

meritless and fails to state a material issue. Ala. R.

Crim. P. 32.7(d). Even assuming his allegations as true,

Albarran cannot establish that there is presumed

prejudice resulting from community saturation with such

prejudicial pretrial publicity that no impartial jury can

be selected. Hunt v. State, 642 So. 2d 999, 1043 (Ala.

Crim. App. 1993).

To establish presumptive prejudice, a defendant has the

burden of showing that the pretrial publicity is

sufficiently prejudicial and inflammatory and the

prejudicial pretrial publicity saturated the community

where the trials were held. Hunt, 642 So. 2d at 1043; see

also Lam Luong, 2013 WL 598119, at *8 (Ala. Crim. App. Feb.

15, 2013)(reversed by Luong v. State, No. 1121097, 2014 WL


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39

983288 (Ala. Mar 14, 2014))(In rare cases, the community

is so predisposed that prejudice can be presumed and venue

must be transferred as a matter of law.)(quoting Sanchez

v. State, 142 P.3d 1134, 1139 (Wyo. 2006)).

A defendants burden to establish presumed prejudice is

extremely heavy one for [t]he presumptive prejudice

standard is rarely applicable, and is reserved for only

extreme situations. Id., quoting Coleman v. Kemp, 778

F.2d 1487, 1490 (11th Cir. 1985). Notably, the mere

existence of [e]xcess publicity does not automatically or

necessarily mean that the publicity was prejudicial.

Hunt, 642 So. 2d at 1043.

But here, even assuming all of Albarrans allegations

as true, his claim is without merit because he has failed

to plead a claim that, if true, could establish presumed

prejudice. See Bryant, 2011 WL 339585, at *6. As pleaded,

most of Albarrans allegations relate to the amount of

publicity, not to whether the publicity was overly

prejudicial or inflammatory. Thus, even as pleaded,

Albarran has failed to plead a claim that, if true, would

entitle him to relief.


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41

allegations that numerous memorial services and ceremonies

were held and that Officer Goldens family publicly

accepted awards on his behalf, these allegations do not

establish that the extensive media coverage aroused

passions, outrage, and anger toward Albarran. See Luong,

2013 WL 598119, at *21.

Albarran has failed to plead any facts that, if true,

would indicate pervasive public outrage in the community or

extensive prejudicial new reports. Even assuming as true

that the media reported about Albarrans immigration

status, Albarran has failed to plead any facts that, if

true, would show that such reporting was excessive,

flamboyant, or outrageous. Further, a discussion of a

defendants immigration status does not rise to one of the

rare cases where prejudice is presumed. Notably, the

Alabama Supreme Court recently held that a circuit court

did not abuse its discretion in refusing to find presumed

prejudice and reversed the Court of Criminal Appeals

holding that presumed prejudice was present. Luong, 2014

WL 983288 at *8. Luong demonstrates the meritless nature

of Albarrans claim for a change of venue for the publicity

in Luong relayed much more potentially damaging details


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about the defendant than the type of information alleged by

Albarran here. See Luong, 2013 WL 598119, at *21 (noting

numerous news reports discussing the defendants reputation

as a crack addict, the fact that the defendant had a

criminal history, and that the defendant had been arrested

and pled guilty to various drug charges in Georgia and

Mississippi). In any event, the mere fact that media

coverage references a defendant's criminal history, by

itself, is not sufficient to satisfy the presumed-prejudice

standard. McCray, 88 So. 3d at 70.

Moreover, Albarrans claim is meritless on its face as

many of his allegations do not specifically relate to his

case or the media coverage of the crime. For example, the

fact that the Alabama Hispanic Association filed a lawsuit

against the Huntsville Police Department in 2007 alleging

police misconduct in other cases, even if true, does not

show how pretrial publicity surrounding Albarrans trial

prejudicially saturated the community.

Finally, Albarrans allegation that prejudice must be

presumed based on the fact that the trial court originally

issued an order changing venue to Calhoun County is

facially meritless. After granting a change of venue, a


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trial court retains discretion of that decision and the

change of venue order may be set aside, vacated, modified,

or annulled by the court making it. Ex parte Morrow, 66

So. 2d at 133. Simply the fact that the trial court

initially granted a change of venue does not mean that

Albarran could not receive a fair trial in Madison County

or that the community was saturated with prejudicial

publicity, particularly where trial counsels original

intent was to try the case in Madison County. (See R.

175)(we want to be in Huntsville.). As stated above,

Albarrans claim is simply facially meritless where, even

assuming his allegations as true, he has failed to plead

facts that could show that the pre-trial publicity in his

case was presumptively prejudicial.

To the extent that Albarran argues that there was

actual prejudice against him as a result of pre-trial

publicity, this claim should be summarily dismissed because

it is insufficiently pleaded. Ala. R. Crim. P. 32.6(b).

Albarran has utterly failed to plead any specific facts

that, if true, would show that one or more jurors who

decided the case entertained an opinion, before hearing the

evidence adduced at trial, that the defendant was guilty


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and that the jurors could not have laid aside these

preformed opinions and rendered a verdict based on the

evidence presented in court. Hunt, 642 So. 2d at 1043.

Albarran has failed to plead any clear and specific

facts that, if true, would indicate that any juror had an

opinion prior to evidence being presented at trial. Nor

has Albarran pled any facts that, if true, would show that

any juror could not have laid aside a personal opinion and

rendered a verdict based on the evidence. Albarran has

failed to identify any specific jurors who he alleges were

actually prejudiced and has further failed to plead any

specific facts concerning what opinions these unnamed

jurors had. In fact, Albarran concedes that lack of

specificity of his claim by alleging that he will be able

to more fully demonstrate this after the opportunity to

fully develop the record through discovery and presentation

of evidence at an evidentiary hearing.

But Albarrans allegation is deficient for Rule

32.6(b) requires that the petition itself disclose the

facts relied upon in seeking relief. Boyd, 913 So. 2d at

1125-26. Albarran is not entitled to an evidentiary

hearing or discovery to discover facts. To the contrary,


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Albarran is entitled to discovery and an evidentiary

hearing only if his claims are facially meritorious, which

requires a full disclosure of the factual basis of his

claim for relief. Ala. R. Crim. P. 32.6(b). Because he

failed to meet this pleading standard, this claim should be


b. The claim that trial counsel waived venueoutside his presence and withoutconsulting him.


both refuted by the record and facially without merit.

Ala. R. Crim. P. 32.7(d); see McNabb, 991 So. 2d at 320

(Thus, because this claim was clearly refuted by the

record, summary denial was proper pursuant to Rule 32.7(d),

Ala. R. Crim. P.). Albarrans claim that his trial

counsel was ineffective for waiving change of venue outside

of his presence is without merit on its face. Although

Albarran was not present during the hearing in which the

trial court vacated and set aside the January 31, 2008

order transferring the trial to Calhoun County, Albarran

specifically waived his right to be present at the change

of venue hearing by signing a written waiver. (C. 246.)

Thus, this claim is meritless on its face.


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Furthermore, Albarrans claim that his trial counsel

did not consult him on waiving the change of venue to

Calhoun County is refuted by the record. Albarran

specifically waived venue for his trial in Madison County

and signed a written waiver in which he stated that he made

the decision upon advice of counsel. Id.

Finally, even assuming as true Albarrans allegation

that the April 4, 2008 written waiver applied to his prior

January 31, 2008 hearing and not the April 10, 2008

hearing, there was no error in Albarran not being present

for the hearing. The personal presence of the defendant is

not required at a change of venue hearing. Ala. Code 15-

2-20(c). Moreover, Albarrans presence at the April 10,

2008 hearing was waived. (R. 335.) Thus, because this

claim is refuted by the record and facially without merit,

it should be summarily dismissed. Ala. R. Crim. P.

32.7(d).

c. The claim that trial counsel conductedcritical proceedings relating to the

change of venue issue off the record.

This claim should be summarily dismissed because it

fails to state a material issue and is facially meritless.

Ala. R. Crim. P. 32.7(d). Albarran appears to allege that


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his trial counsel was ineffective for conducting a hearing

on January 11, 2008 concerning his initial motion to change

venue off the record. Even assuming these facts as true,

this claim is meritless. Albarran could not have been

prejudiced because the trial court did not deny, but

granted, Albarrans motion. (R. 182.)

Albarrans allegation that his trial counsel was

ineffective for having discussions with the parties off the

record in the Judges chambers on April 9, 2008 concerning

the waiver of venue is also facially meritless. As noted

above, even accepting this allegation as true, Albarran

could not be prejudiced by the fact that his attorneys had

off the record discussions concerning the waiver of venue

because Albarran had already personally agreed to the

waiver of venue after consulting with his attorneys. (C.

246.) Even assuming his allegations as true, Albarran

simply could not be prejudiced by discussions that occurred

concerning a motion with which he agreed. Therefore,

because this claim is meritless on its face, it is due to

be dismissed. Ala. R. Crim. P. 32.7(d).

Finally, to the extent that Albarran argues that his

trial counsel was ineffective for failing to request a gag


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of mental disease or defect. Albarran contends that

raising this insanity defense was ineffective because it

was based on the diagnosis of Dr. Silva, who opined that

Albarran suffered from an alcohol and cocaine induced

psychosis at the time of the offense. Albarran further

contends that an insanity defense based on a psychosis

brought on by voluntary intoxication was ineffective

because intoxication cannot support an insanity defense,

but can only negate the specific intent to commit capital

murder. Albarran argues that he was prejudiced by raising

the insanity defense in this fashion because the State was

able to reject the legality of this defense to the jury and

because pursuing this defense distracted the jurys focus

from a more sound defense of arguing that Albarrans

intoxication rendered him incapable of forming the specific

intent to commit capital murder.


without merit and thus, fails to state a material issue

upon which relief may be granted. Ala. R. Crim. P.

32.7(d). As an initial matter, Albarrans contention that

his trial counsel was ineffective for presenting an

insanity defense based on voluntary intoxication is both


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meritless on its face and refuted by the record. Trial

counsels presentation of the insanity defense was not

based simply on voluntary intoxication. In fact, trial

counsel specifically told the jury that voluntary

intoxication is no defense and that [w]ere not

suggesting that voluntary intoxication is a defense to a

crime. Its not. (R. 3619.)

Instead, the insanity defense was based on two

different pieces of evidence. First and foremost, trial

counsel presented the testimony of Dr. J. Arturo Silva, who

opined that Albarran suffered from both an alcohol-induced

psychosis and a cocaine-induced psychosis which he

testified qualified as a severe mental disease or defect

under the DSM-IV-TR. (R. 2807-2808, 2924.) Dr. Silvas

diagnosis was based on the presence of delusions reported

by Albarran around the time of the offense that were

accentuated by his substance abuse. (Supp. C. 733-737.)

Second, trial counsels presentation of the insanity

defense also was based on the testimony presented by

Albarrans family members who described his strange

behaviors and moods, his family history of mental illness,

and his delusions concerning the devil. (R. 3617.)


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Accordingly, because the record reflects that trial counsel

did not base the insanity defense simply on an argument

that Albarran was voluntary intoxicated, this claim is

meritless on its face.

Regardless, this claim is also without merit because

even accepting his allegations as true, Albarran has failed

to plead a claim that could establish that his trial

counsel was deficient under Strickland. See Bryant, 2011

WL 339585, at *6. Albarrans claim is an example of the

type of second-guessing and hindsight that Strickland

forecloses. See Strickland, 466 U.S. at 689 (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.). Capital

Rule 32 petitioners normally allege that their trial

counsel was ineffective for not raising every possible

defense at trial. Here, Albarran now argues the opposite,

contending that his trial counsel should not have pursued

an insanity defense, but should have only argued that he


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Trial counsels presentation of the insanity defense

falls within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689. Certainly, it

is not unreasonable to present multiple arguments and

theories to the jury, even where one theory may arguably

stronger than another, particularly in this case where

trial counsel presented a qualified mental-health expert

who did opine that a substance-induced psychosis qualified

as a severe mental disease or defect under the DSM-IV-TR.

Therefore, even assuming all of Albarrans allegations as

true, his claim is without merit because he has failed to

plead a claim that, if true, would establish that his trial

counsel was deficient under Strickland.

This claim should also be dismissed because Albarrans

allegation of prejudice is facially meritless. Even

accepting all of his allegations as true, Albarran has

failed to plead a claim that could establish that there is

a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting

guilt. Id. at 695. As pleaded, Albarrans claim of

prejudice is facially meritless because of the overwhelming

evidence of guilt in this case. In other words, even if


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counsel had not presented evidence in support of a plea of

not guilty by reason of mental disease or defect, there was

no reasonable probability that the jury would have found

reasonable doubt respecting guilt.

Even assuming his allegations as true, withdrawing the

insanity defense would not have led to any probability, let

alone a reasonable one, that Albarran would not have been

found guilty of capital murder. Moreover, even if trial

counsel had decided not to present an insanity defense,

this would have had no effect on the overwhelming evidence

of guilt presented by the prosecution. At best, such a

decision would have merely removed one defense from the

jurys consideration of which Albarran bore the burden of

proof. See Ala. Code 13A-3-1.

As noted above, the murder of Officer Golden was

gruesome and the evidence against Albarran was strong.

Multiple people witnessed Albarran not only shoot and kill

Officer Golden, but particularly graphic details of the

murder where Albarran shot Golden multiple times as he lay

on the ground begging for his life. For instance, Charles

Ward testified that even with Officer Golden on the ground,

Albarran picked up a handgun and discharged the magazine


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at Officer Golden. (R. 2126.) Tanisha Thomas testified

that she saw Albarran shooting Officer Golden, that Golden

fell to the ground and yelled Wait!, yet Albarran kept

shooting. Albarran, 96 So. 3d at 146. William Thomas also

testified that Albarran shot Officer Golden and that after

the officer went down, Albarran shot him and then walked up

to the officer and shot him again. Id.

Albarrans claim is simply meritless. Even assuming as

true Albarrans claim that trial counsels presentation of

the insanity defense was legally and factually unsound,

there is no reasonable probability the result would have

been different. Albarran was convicted because of the

overwhelming evidence of guilt, not because of an

unsuccessful plea of insanity. Albarrans arguments to the

contrary are unavailing.

For instance, Albarrans contention that the

presentation of an insanity defense undermined and

compromised his argument that his intoxication negated the

specific intent to commit capital murder (Pet. at 75)

ignores the fact that this argument was still presented to

and, rejected by, the jury. Trial counsel specifically

argued that, aside from the insanity defense, the


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prosecution had failed to prove that Albarran specifically

intended to kill Officer Golden based on the evidence that

he had used alcohol and drugs. (R. 3615.) Even assuming

as true Albarrans allegation that the jury could have been

confused between the insanity defense and the argument that

Albarrans intoxication negated his specific intent to

kill, there is no probability whatsoever that the result of

the guilt phase would have been different based on the

overwhelming evidence of guilt.

Moreover, although Albarran contends that trial counsel

should have called other witnesses to support his claim

that he could not form the specific intent to kill based on

his intoxication, even if true, Albarran has failed to

plead a claim that could show prejudice. While Albarran

lists the names of two witnesses who would testify about

his general use of drugs, he fails to specifically plead

that these two witnesses observed, or would have been able

to testify about, the specific substances, if any, that

Albarran used on the day of the offense. (Pet. at 72-73.)

Likewise, Albarrans arguments that the presentation of

the insanity defense opened the door for privileged

statements to Dr. Hooper to be admitted, opened the door


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for the State to admit prior bad acts, and resulted in the

presentation of irrelevant evidence are facially without

merit. Even assuming these facts as true, there is no

reasonable probability that, but for these alleged errors,

the jury would have found reasonable doubt respecting

guilt. Strickland, 466 U.S. at 695. The evidence of

Albarrans guilt was overwhelming. Moreover, the jury did

not convict Albarran because of statements made to Dr.

Hooper or any prior bad acts, but based on this

overwhelming evidence of guilt.

Moreover, even assuming as true Albarrans contention

that the presentation of the insanity defense opened the

door to certain evidence or resulted in irrelevant evidence

being presented, this could not render the result of the

trial fundamentally unfair or unreliable. Rhode v. Hall,

582 F.3d 1273, 1280 (11th Cir. 2009). Even assuming his

allegations as true, the States rebuttal to the insanity

defense did not lead to the introduction of any egregious

or prejudicial evidence, particularly when compared to the

lawful, admissible evidence of Albarrans guilt that was

already presented. Nor could Albarrans trial have been

rendered fundamentally unfair simply because the jury heard


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to review juror questionnaires and to question potential

jurors. Albarran also alleges that his trial counsel

should have objected to the amount of time provided by the

trial court to review the questionnaires. As a result,

Albarran argues that his trial counsel was forced to use

peremptory strikes to dismiss jurors who should have been

struck for cause. Finally, Albarran complains that certain

jurors were left on the jury that had prior knowledge about

the case.


insufficiently pleaded. Ala. R. Crim. P. 32.6(b). This

claim is nothing but a bare allegation. Although Albarran

contends that the trial court unreasonably placed time

restrictions on voir dire, Albarran fails to specifically

plead how much time the trial court should have provided

for voir dire or how much trial counsel should have

requested. Likewise, although Albarran alleges certain

jurors should have been struck for cause, Albarran utterly

fails specifically plead facts that, if true, would show

that these jurors met the standard for qualifying for a

challenge for cause. See Washington v. State, 95 So. 3d

26, 38 (Ala. Crim. App. 2012)(holding that the circuit


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court correctly summarily dismissed this claim because

Washington failed to identify specific jurors by name

under Rule 32.6(b).)

In Alabama, the standard for striking a potential

juror for cause because of the juror's bias requires that

the juror have a fixed opinion concerning the defendant's

guilt that would interfere with his ability to render a

fair and unbiased verdict. Phillips v. State, 65 So. 3d

971, 1009 (Ala. Crim. App. 2010). Moreover, [o]nly when a

prospective juror's testimony indicates a bias or prejudice

so fixed or deep-seated that that person cannot be

impartial and objective must a challenge for cause be

granted by the trial court. Ex parte Land, 678 So. 2d 224,

240 (Ala. 1996). Albarran fails to plead any facts or any

testimony from the jurors identified in his petition that,

if true, would show the jurors had a fixed opinion or were

unable to render a fair verdict.

Instead, Albarran merely provides a list of

unidentified jurors with generalized statements about each

juror without providing any record citations to identify

either the jurors or facts about the jurors. Thus, based

on Albarrans deficient pleading, it is impossible to


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determine whether trial counsel did or did not move for

cause to strike the unidentified jurors listed in his

petition. Accordingly, because of Albarrans failure to

plead the full factual basis for his claim, this Court

cannot determine whether Albarran is entitled to relief and

his claim should be dismissed. See Washington, 95 So. 3d

at 38 (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).)(quoting Hyde v. State, 950 So. 2d 344, 356 (Ala.

Crim. App. 2006)).

Albarran also failed to specifically plead facts that,

if true, would establish that his trial counsel was

deficient under Strickland. Ala. R. Crim. P. 32.6(b).

Albarran has failed to plead any specific facts that, if

true, would show that his trial counsel actually needed

more time during voir dire. Albarran fails to plead that

his trial counsel actually was unable to review all of the

juror questionnaires.

Furthermore, Albarran fails to plead specific facts

concerning what additional questions his trial counsel


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should have asked during voir dire if counsel had more time

that would have resulted in more jurors struck for cause.

Notably, trial counsel did move to strike multiple jurors

for cause which the trial court denied. See Albarran, 96

So. 3d at 159-162. Albarran has failed to specifically

plead in his petition any substantive action his trial

counsel could have done differently other than the bare

allegation that his trial counsel simply should have asked

for more time. Finally, Albarran also has failed to plead

facts that, if true, would show that trial counsel did not

have a strategic reason for how counsel conducted voir

dire, how counsel questioned certain jurors, or how counsel

decided to facilitate strikes for cause and peremptory

strikes. Given that an attorney's actions during voir

dire are considered to be matters of trial strategy, which

cannot be the basis of an ineffective assistance claim

unless counsel's decision is ... so ill chosen that it

permeates the entire trial with obvious unfairness,

Washington, 95 So. 3d at 64 (citations omitted), this

failure alone renders this claim insufficiently pleaded and

due to be dismissed.


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jurors who were empanelled and tried his case had prior

knowledge of the case does not constitute a sufficiently

pleaded claim because [a] juror need not be excused merely

because [the juror] knows something of the case to be tried

or because [the juror] has formed some opinions regarding

it. Thompson v. State, CR050073, 2012 WL 520873, at *15

(Ala. Crim. App. Feb. 17, 2012)(internal citations

omitted). Therefore, because this entire claim is

insufficiently pleaded, it is due to be dismissed. Ala. R.

Crim. P. 32.7(d).

Alternatively, this claim should be summarily dismissed

because it is without merit and fails to state a material

issue. Ala. R. Crim. P. 32.7(d). Albarrans claim that

his trial counsel was ineffective because counsel had to

use peremptory strikes on jurors who should have been

struck for cause as a result of not having adequate time

during voir dire is facially meritless. For, the Alabama

Supreme Court has held that the failure to remove a juror

for cause is harmless when that juror is removed by the use

of a peremptory strike. Pace v. State, 904 So. 2d 331,

341 (Ala. Crim. App. 2003). Therefore, because Albarrans


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substantive claim is meritless on its face, this claim

should be summarily dismissed. Ala. R. Crim. P. 32.7(d).

b. The claim that trial counsel failed to

question jurors on exposure to pre-trialpublicity and other issues.


counsel failed to individually question any jurors on their

exposure to pre-trial publicity, crime-victim status, and

relationships to law enforcement.



Albarran has failed to specifically plead any facts that,


deficient or that he was prejudiced under Strickland. For

example, Albarran fails to specifically plead or identify

the names of the jurors that he contends should have been

individually questioned. See Washington, 95 So. 3d at 64

(affirming summary dismissal of claim of ineffective

assistance of counsel during voir dire under Rule 32.6(b)

where petitioner failed to identify specific jurors by

name.) Nor does Albarran plead any specific facts

concerning what details about the case the potential jurors

were aware of or what publicity the potential jurors had


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been exposed to that would have necessitated individual

questioning.

Although he generically lists topics such as pre-trial

publicity, crime-victim status, and ties to law

enforcement, Albarran also fails to plead what specific

questions his trial counsel should have asked during voir

dire. More importantly, Albarran fails to plead any facts

concerning what specific information he would have learned

had his trial counsel conducted individual questioning.

Nor does he plead how this unidentified information would

have led to a challenge for cause or a peremptory strike.

Similarly, while Albarran contends that at least two

jurors on the jury panel had either donated to a law

enforcement organization or had close relatives in law

enforcement, Albarran completely fails to plead a

sufficient factual basis that, if true, would show that he

was entitled to a challenge for cause for these jurors or

that it would have been part of trial counsels strategy to

exercise a peremptory strike against these two jurors.

Accordingly, because this claim is nothing but a bare

allegation and no purpose would be served by any further


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proceedings, this claim should be dismissed. Ala. R. Crim.

P. 32.7(d).

To the extent that Albarran contends that his trial

counsel was ineffective for failing to discover in voir

dire that a juror was the victim of a domestic incident,

this claim should also be summarily dismissed because it is


Albarran has failed to plead any specific facts that, if

true, would show that his trial counsel was deficient or

that he was prejudiced or entitled to any relief. Albarran

raised the substantive aspect of this claim on direct

appeal, asserting that the juror committed misconduct by

failing to disclose during voir dire that her husband had

assaulted her approximately 19 months prior to trial. See

Albarran, 96 So. 3d at 193-197. The Court of Criminal

Appeals held that Albarran failed to establish that he

might have been prejudiced. Id. That court specifically

found that the record indicates that defense counsel were

not concerned with prospective jurors' prior victimizations

because counsel did not strike a number of other potential

jurors who had been victims of violent crimes. Id. at

196.


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Albarran has failed to specifically plead any

additional facts that, if true, would show how he was

prejudiced by not pursing individual voir dire of this

juror. Nor does Albarran specifically plead what

additional information or details about this situation he

would have learned or how this unidentified information

would have necessitated a challenge for cause. Albarran

also fails to plead what specific questions his trial

counsel would have asked or whether striking this juror

peremptorily would have been consistent with trial

counsels strategy given the record reflects that several

jurors served on the jury despite being victims of crime.

Id. at 196. Finally, Albarran does not specifically plead

which juror should have been left on the jury in the place

of this particular juror. Accordingly, because this claim

is insufficiently pleaded, it is due to be dismissed. Ala.

R. Crim. P. 32.7(d).

c. The claim that trial counsel insertedAlbarrans immigration status into voir

dire.


counsel was ineffective for inserting the issue of his

immigration status in the juror questionnaire.


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Albarran has failed to plead clear and specific facts that,


deficient or that he was prejudiced under Strickland.

Generally, an attorney's actions during voir dire are

considered to be matters of trial strategy, which cannot be

the basis of an ineffective assistance claim unless

counsel's decision is ... so ill chosen that it permeates

the entire trial with obvious unfairness. Washington, 95

So. 3d at 64 (citations omitted). It is reasonable that

trial counsel would have strategic reasons for wanting to

know potential jurors views on immigration given the fact

that Albarran was a Mexican national and evidence of his

nationality and culture were presented during trial. As

trial counsel admitted, evidence about Albarrans Mexican

heritage and culture was part of the evidence trial counsel

expected to present during trial. (R. 868.)

But Albarran has failed to specifically plead any facts

that, if true, would show that trial counsels inclusion of

certain questions on the jury questionnaire was not part of

counsels overall voir dire strategy. Albarran has also


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failed to plead any specific facts that, if true, would

show that no competent counsel would have included

questions about his immigration status on a jury

questionnaire given the unique circumstances of this case.

Moreover, Albarran has failed to specifically plead how

he was prejudiced by the inclusion of these questions on

the jury questionnaire. Albarrans contention that he was

treated differently biased as a result of his immigration

status is nothing but unfounded speculation. Albarran

completely has failed to plead any specific facts that, if

true, would show how he was actually treated differently to

similarly situated individuals. While he contends that

his trial counsels ineffectiveness resulted in prejudicial

evidence being admitted against him, he fails to

specifically plead what specific evidence he contends was

improperly admitted. Albarrans entire claim consists of

nothing but bare allegations devoid of any specific factual

basis concerning prejudice under Strickland. Accordingly,

because [a] bare allegation that prejudice occurred

without specific facts indicating how the petitioner was

prejudiced is not sufficient, Hyde, 950 So. 2d at 356,


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this entire claim is insufficiently pleaded and should be


d. The claim that trial counsel inserted

other prejudicial evidence into voirdire.


counsel was ineffective for presenting false and misleading

information during voir dire to prospective jurors about

what counsel expected the evidence to show.



Albarrans claim is nothing but a bare allegation devoid of

any specific factual basis. Within this claim, Albarran

merely has searched the transcript of voir dire and

presented a laundry list of comments by trial counsel,

without placing the comments in context, which he now finds

objectionable. But this bare, conclusory pleading does not

constitute a sufficiently pleaded claim, for an attorney

looking back at a trial transcript can always find

instances where objections could have been made or

statements and arguments could have been phrased

differently. See Tarver v. State, 629 So. 2d 14, 19 (Ala.

Crim. App. 1993)(An ineffectiveness of counsel claim does


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not lend itself to a search of the record to pick the

instances in which an objection could have been made.).

Albarran has also failed to specifically plead facts

that, if true, w

albarran state motion to dismiss

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