258 So. 3d 1154
Ala. Crim. App.2017Background
- Calvin McMillan was convicted in 2009 of capital murder for killing James Bryan Martin during a robbery; the jury recommended life without parole (8–4), but the trial court overrode and imposed death. On direct appeal, conviction and sentence were affirmed.
- McMillan filed a timely Rule 32 postconviction petition alleging (inter alia) Brady/Napue violations, multiple ineffective-assistance-of-counsel (IAC) claims about mitigation investigation and penalty-phase objections, an Atkins (intellectual disability) claim, and a recusal/recusal-procedure challenge to the sentencing judge.
- The circuit court summarily dismissed McMillan’s amended Rule 32 petition after detailed review; McMillan appealed that summary dismissal.
- The appellate court applied Rule 32 pleading and summary-dismissal standards (requires full factual pleading; petitioner bears preponderance burden) and reviewed each claim de novo for sufficiency.
- The court affirmed dismissal on multiple bases: procedural bars where appropriate, failure to plead non-cumulative or material facts, reasonable strategic decisions by trial counsel based on retained experts, absence of Brady/Giglio/Napue suppression or materiality, and lack of prejudice under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady/Napue re: inmate Winston Lucas testimony | McMillan: State suppressed that Lucas (whom McMillan stabbed) had earlier assaulted McMillan and knowingly introduced Lucas's false testimony | State: facts were known or available to McMillan; no incident report; not material; claim procedurally barred | Dismissed — procedurally barred and, alternatively, not meritorious (no suppression, no material false testimony) |
| IAC for failing to present low IQ / intellectual-functioning mitigation | McMillan: counsel should have more fully investigated and presented IQ/adaptive-deficit evidence | State: counsel retained and relied on qualified experts (Drs. Kirkland and Ackerson), performed reasonable investigation; evidence presented at sentencing; additional evidence would be cumulative | Dismissed — counsel's investigation and strategy were reasonable; no Strickland prejudice |
| IAC for failing to raise Atkins (intellectual disability) at trial | McMillan: counsel should have argued Atkins; execution unconstitutional | State: trial experts measured IQ 76 and found adaptive functioning not meeting mental-retardation criteria; counsel reasonably relied on those experts | Dismissed — procedurally barred and, alternatively, no merit because McMillan did not meet Perkins/Atkins criteria |
| IAC re: fetal alcohol / TBI neurological claims | McMillan: counsel failed to investigate fetal alcohol syndrome and traumatic brain injury | State: allegations speculative, no specific facts or records alleging those diagnoses; defense experts did not indicate further testing was needed | Dismissed — speculative pleading, no deficiency or prejudice shown |
| IAC for failing to present more detailed instability/foster-care mitigation | McMillan: counsel failed to interview many foster parents/social workers to develop a fuller mitigation narrative | State: defense presented family witnesses, experts, DHR records showing placements; additional witnesses would be cumulative | Dismissed — mitigation presented was meaningful; additional evidence would be cumulative |
| IAC for failing to object to prosecutor arguments (various) | McMillan: prosecutors made improper remarks (e.g., jury as "conscience of community," limiting aggravators, arguing dangerousness, personal anecdotes) and counsel should have objected | State: remarks were proper or cured by instructions; many arguments were fair rebuttal or harmless; jury recommended life so prejudice lacking | Dismissed — comments not improper in context; no Strickland prejudice |
| IAC re: failure to investigate/prior-assault victim (Rompilla issue) | McMillan: counsel should have contacted the victim of an earlier Assault III conviction for mitigation | State: counsel sought and reviewed available files, obtained State records, and reasonably decided further pursuit risked exposing more damaging conduct | Dismissed — counsel reasonably investigated; Rompilla not implicated |
| Recusal due-process claim re: Judge Bush | McMillan: judge prejudged counsel effectiveness and had campaign ties to trial counsel | State: contributions were small relative to total; judge's prior comment doesn’t create appearance of impermissible bias | Denied — no appearance of unconstitutional bias under Caperton; mandamus previously denied; no relief warranted |
| Right-to-counsel extension to mandamus petitions | McMillan: appointed postconviction counsel should have been authorized to file appellate mandamus petitions | State: no right to counsel for discretionary appellate/extraordinary writs | Denied — no constitutional right to counsel for discretionary mandamus; appointment limited to Rule 32 proceedings |
| Suppression motion / voluntariness and competency issues | McMillan: counsel should have used intellectual-deficit evidence to challenge confession/suppression | State: court-ordered and defense experts found coherent, goal-directed thinking and capacity to understand legal situation; no basis for different suppression argument | Dismissed — counsel reasonably relied on expert evaluations; no deficient performance |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial suppression of materially exculpatory evidence violates due process)
- Napue v. Illinois, 360 U.S. 264 (1959) (due process violation when prosecution uses false testimony or allows it to go uncorrected)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficiency and prejudice)
- Atkins v. Virginia, 536 U.S. 304 (2002) (execution of intellectually disabled persons unconstitutional)
- Rompilla v. Beard, 545 U.S. 374 (2005) (counsel must review readily available prior-conviction files when they will be used as aggravating evidence)
- Wiggins v. Smith, 539 U.S. 510 (2003) (prejudice inquiry requires reweighing aggravation against totality of mitigating evidence)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (extreme campaign contributions can create unconstitutional risk of bias)
- Mills v. Maryland, 486 U.S. 367 (1988) (jury instructions requiring unanimity for mitigating findings may violate due process)
- Hall v. Florida, 572 U.S. 701 (2014) (rejecting strict IQ cutoff without considering standard error of measurement in Atkins context)
- Kyles v. Whitley, 514 U.S. 419 (1995) (materiality standard for Brady requires reasonable probability of different result)
- Ex parte Perkins, 851 So.2d 453 (Ala. 2002) (Alabama's adoption of the elements for mental retardation in Atkins analysis)
- McMillan v. State, 139 So.3d 184 (Ala. Crim. App. 2010) (direct-appeal decision affirming conviction and addressing sentencing/override issues)