Michael David Belcher v. State of Alabama
CR-2023-0206
Alabama Court of Criminal Appeals
June 26, 2026
COLE, Judge.
OCTOBER TERM, 2025-2026; Appeal from Tuscaloosa Circuit Court (CC-16-161.60)
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.
On Application for Rehearing
COLE, Judge.
The opinion issued on August 22, 2025, is withdrawn, and the following is substituted therefor.
Facts and Procedural History
In January 2016, Belcher was indicted for the murder of Samantha Payne,1 which was made capital because it was committed during the course of a kidnapping. Belcher was convicted of the capital murder of Samantha during a kidnapping, see
The facts of Belcher‘s crime were set forth in this Court‘s opinion affirming Belcher‘s conviction and sentence on direct appeal as follows:
“[O]n November 9, 2015, a hunter discovered the nude, decapitated, and decomposed body of Samantha Payne tied to the base of a tree in Talladega National Forest. Samantha‘s hands were stretched upward and bound to the base of the tree with a leather belt, and ‘coaxial cable’ was tied around Samantha‘s wrists. (R. 920.) Her head was approximately 14 feet from her body. Dr. Steven Dunton, a medical examiner with the Alabama Department of Forensic Sciences, testified that because Samantha‘s body was so decomposed it was impossible for him to determine her exact cause of death. (R. 923.) He said that X-rays revealed that Samantha had fractures to four of her ribs and that those fractures were caused by a ‘crushing trauma of some type.’ (R. 928.) Samantha was alive, he said, when she was tied to the tree. Dr. Dunton testified that, based on his experience, he did ‘not believe’ that Samantha died of natural causes. (R. 928.)
“Two of Belcher‘s codefendants testified in exchange for plea agreements with the State. Chylli Bruce testified that she pleaded guilty to her role in the kidnapping and murder of Samantha and that, as part of that agreement, she agreed to testify truthfully at her codefendants’ trials. (R. 464.) She testified that she was a drug addict; that she was using crystal methamphetamine at the time of the murder; that she met
” ’ [Samantha] is taken out of the car. [Belcher] is trying to tie her up in the back seat, but she won‘t be still. So I place my foot on her face, and I guess he‘s tying her up with the belt or something. The next thing I remember she‘s laying on the ground, she‘s tied up. I‘m asked to take her fingernails off.’
“(R. 480.) Bruce got a knife and ‘popped’ off Samantha‘s artificial fingernails (R. 480), Belcher and Marcus beat and kicked her, and then they put Samantha into the trunk of one of the vehicles and drove to Talladega National Forest. At one point, Samantha fell out of the trunk when the vehicle hit a pothole, and Bruce helped Belcher put Samantha back into the trunk and they drove into the forest. Bruce testified:
” ‘We come to a bridge. Marcus says that -- tells [Belcher] that we‘re going to have to kill her. [Belcher] says that we will have to. So we get back on the road, and we keep going into this forest. We run out of gas.’
“(R. 484.) At that point, Marcus and Alyssa drove past them in their vehicle. Belcher and Steven then took Samantha out
“Steven testified that he pleaded guilty to murder in exchange for his testimony at his codefendants’ trials. He testified that in September 2015, he started spending a lot of time with Belcher and the two would hang out together and ‘do drugs’ at the Shop. (R. 547.) On the evening of November 1, 2015, Belcher, Marcus, Alyssa, and Samantha were at the Shop. Steven said that he took Samantha‘s vehicle when she went to the bathroom and left her keys on a counter. He and Marcus drove down Highway 219, but he decided that he wanted the vehicle‘s catalytic converter, so he drove back to the Shop. After removing the catalytic converter, he set the vehicle on fire. He and Marcus then went to Belcher‘s house so that he could change clothes. When they returned to the Shop, Steven said, Belcher and Bruce were in Belcher‘s vehicle and were driving away from the Shop. They followed them to Belcher‘s house. Belcher pulled Samantha from the backseat of his vehicle and started kicking and slamming Samantha into the floor. Samantha‘s face was bleeding badly. (R. 562.) The group then got into two vehicles and drove to an abandoned trailer and house. (R. 563.) When they arrived, Belcher continued to kick and stomp Samantha in the face. Belcher told Steven to get something he could use to tie up Samantha, so Steven went and got some cable wire from the trailer. Samantha was crawling around and telling them that she ‘loved them’ and that she would not tell anyone what they had done. (R. 565.) Belcher, Bruce, and Steven then left in Belcher‘s vehicle with Samantha in the trunk and Belcher driving. Samantha fell out of the trunk and Belcher stopped.
” ‘And then [Belcher] said, “We got to get her out of the car.” So he gets her out of the car, starts dragging her in the woods. [Belcher] told me to come help him. So I get out of the car, go help him drag her in the woods.’
“(R. 572.)
” ‘[S]he kept trying to get loud with him. So [Belcher] started stomping her in the face. Said, Shut up. If you don‘t shut up, I‘m going to kill you. He told me to get some more rope out of the car. So I was fixing to go get -- He said, Well, hand me your knife. I gave him the knife, and I went to the car. When I got to the car, [Bruce] was already walking back. I told [Bruce] to get in the car. I got the car cranked up. It might have went a few feet and cut off. Then me and her went up the hill to the firing -- shooting range. We got in a conversation with the game wardens, asking for some gas. They didn‘t have no gas, so we kept walking. So I got up the road.’
“(R. 575.) The last time he saw Samantha, Steven said, she was fully dressed and alive.
“Deputy Enoch Rose of the Hale County Sheriff‘s Department testified that he was dispatched to Talladega National Forest on November 2, 2015, in response to an emergency 911 call that ‘somebody was up there, supposedly one of Tuscaloosa County‘s most wanted ... and that subject was up there walking on the road and asking for gas.’ (R. 615.) He approached a vehicle and found Steven and Bruce. Deputy
“....
“James Harvey testified that on the morning of November 2, 2015, Lauren [Harvey] telephoned him and said that a ‘half-naked man’ was beating on her door and trying to get into her house. (R. 655.) He lived about four miles from Lauren, so he got into his vehicle and drove to her house. As Harvey approached Lauren‘s driveway, he said, Lauren called him. The man had left her house, and she told Harvey the direction that the man was walking. Harvey found a man, who he identified at trial as Belcher, sitting on the guardrail of a bridge. He said that Belcher had no shirt and had scratches all over him, and that there was a ‘red tint’ to his hands that Harvey believed was some type of blood. (R. 662.) Harvey said that Belcher told him that his friends had played a trick on him; that they had left him in the woods; and that he had been walking all night. Harvey drove Belcher to a local store. Lauren called Harvey and told him that deputies wanted to talk to Belcher. Harvey said that he then drove Belcher back to where he had picked up Belcher and that deputies were waiting for them.
“Lieutenant Al Jackson with the Tuscaloosa County Sheriff‘s Office testified that he was called to South Sandy Road in response to a call about a ‘wanted person.’ (R. 668.) When he arrived, he found a vehicle on the side of the road and two people in custody, Steven and Bruce. While there he received another call from dispatch regarding a person knocking on doors on Bear Creek Road. Eventually, he met up with Harvey; a man who he identified as Belcher was in the
“Investigator J.C. Bryant of the Tuscaloosa Police Department testified that he was called to the scene when a body was discovered in Talladega National Forest on November 9, 2015. He said that, after he learned that Steven and Bruce had been detained a week earlier in the general area where the body was found, he spoke to Steven, who was still in police custody. He said that Steven told him what had happened to Samantha, and he then interviewed Belcher on November 9, 2015. Belcher denied all involvement in Samantha‘s murder. On November 10, 2015, Inv. Bryant obtained a search warrant for Belcher‘s house. As a result of the search, he discovered a car battery inside a clothes dryer.
“Investigator Richard Wilkins of the Tuscaloosa Police Department testified that he was the lead investigator into Samantha‘s death. He testified that a search was conducted at the location where Steven and Bruce said that Samantha had first been tied up. The cable retrieved from that location was consistent, he said, with the cable wire that had been used to tie Samantha‘s wrists.
“A forensic biologist with the Alabama Department of Forensic Sciences, Hannah Payne, testified that she conducted biological tests on swabs and clothing that had been collected from the crime scene and sent to her office. She testified that Belcher‘s DNA was found on the handle of Steven‘s pocketknife (R. 896), and that Samantha‘s blood was found on a jacket that had been taken from Belcher‘s vehicle and on Steven‘s shirt.
“Belcher‘s defense was that, although he participated in the events that ultimately led to Samantha‘s murder, Steven was the person who actually killed her. Belcher testified on his own behalf that on the evening of November 1, 2015, he was at the Shop working on a customer‘s motorcycle when he
” ‘Steven opens the trunk up. And me and Steven take [Samantha] out of the trunk. [Bruce is] still in the car. Me and Steven are still arguing. And it‘s -- we didn‘t just leave her in the middle of the road. We sat her a few feet off on the edge of the woods in the bushes. At that point, Steven was walking around the car. I turn around and walk back off up the road the way we had just came in. I didn‘t know where I was at. I didn‘t know where the road led to. I knew we came in the way we came in, and I just walked. I continued to walk, took several different roads; but I didn‘t remember where we come from. It was daylight at this point.’
“(R. 975.) A man picked him up, he said, and took him to a store. Shortly thereafter, he was taken into custody. On cross-examination, Belcher said that he just ‘followed the crowd.’ (R. 990.)
“At the penalty phase of the trial, Belcher called several witnesses to testify in mitigation. Deputy Mike Byars of the Tuscaloosa County Sheriff‘s Office testified that while incarcerated Belcher had been a well-behaved inmate. Dr. Randall Griffith, a psychologist, testified that he conducted a neuropsychological evaluation of Belcher and that he interviewed Belcher at the Tuscaloosa County jail. It was his opinion that Belcher suffered from a ‘mild neuro-cognitive disorder,’ which, he said, means that Belcher had ‘some degree of impairment in one area of his thinking ability.’ (R. 1109.) Belcher also presented the testimony of several family members who said that Belcher was a doting father, that he was a kind and loving person, and that he loved animals. Belcher‘s mother testified that since Belcher had been arrested his faith had grown and that when she spoke to him they frequently prayed together.”
Belcher v. State, 341 So. 3d 237, 249-54 (Ala. Crim. App. 2020) (footnotes omitted).
On direct appeal, this Court affirmed Belcher‘s conviction and sentence. See Belcher, supra. On May 21, 2021, after the Alabama Supreme Court denied Belcher‘s petition for a writ of certiorari, this Court issued a certificate of judgment.
Belcher filed his first direct-appeal brief on February 14, 2020, and he filed the instant postconviction petition on May 12, 2021, during the pendency of his direct appeal, after paying the filing fee and receiving a single, 90-day extension from the circuit court as permitted by the Fair
On September 30, 2021, the circuit court held a hearing on the State‘s motion to dismiss and Belcher‘s request for leave to amend his petition. The same judge who had presided over Belcher‘s trial presided over the postconviction proceedings, and, on February 15, 2023, the circuit court entered an extensive order summarily dismissing Belcher‘s petition for postconviction relief without an evidentiary hearing because, it determined, the claims therein were insufficiently pleaded, meritless, or both. This appeal follows.
It is well settled that a circuit court may summarily dismiss a postconviction petition pursuant to
“[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).
” ‘[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, “[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.” ’ Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So. 2d 1118, 1119 (Ala. Crim. App. 1992)). However, ‘when the facts are undisputed and an appellate court is presented with pure questions of law, that court‘s review in a Rule 32 proceeding is de novo.’ Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). ‘The sufficiency of pleadings in a Rule 32 petition is a question of law’ and is reviewed ’ “de novo.” ’ Ex parte Beckworth, 190 So. 3d 571, 573 (Ala. 2013) (quoting Ex parte Lamb, 113 So. 3d 686, 689 (Ala. 2011)). Moreover, when a trial court makes its judgment ‘based on the cold trial record,’ we apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 352 (Ala. 2012).”
Harris v. State, 365 So. 3d 1075, 1089 (Ala. Crim. App. 2021).
”
Rule 32.3, Ala. R. Crim. P. , states that ‘[t]he petitioner shall have the burden of pleading ... the facts necessary to entitle the petitioner to relief.’Rule 32.6(b), Ala. R. Crim. P. , states that ‘[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.’ As this Court noted in Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003):” ’ “Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.” Boyd v. State, 746 So. 2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not the pleading of a conclusion “which, if true, entitle[s] the petitioner to relief.” Lancaster v. State, 638 So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in
Rule 32.9, Ala. R. Crim. P. , to present evidence proving those alleged facts.’“913 So. 2d at 1125.
” ‘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).
” ‘Although postconviction proceedings are civil in nature, they are governed by the Alabama Rules of Criminal Procedure. See
Rule 32.4, Ala. R. Crim. P. The “notice pleading” requirements relative to civil cases do not apply to Rule 32 proceedings. “Unlike the general requirements related to civil cases, the pleading requirements for postconviction petitions are more stringent....” Daniel v. State, 86 So. 3d 405, 410-11 (Ala. Crim. App. 2011).Rule 32.6(b), Ala. R. Crim. P. , requires that full facts be pleaded in the petition if the petition is to survive summary dismissal. See Daniel, supra. Thus, to satisfy the requirements for pleading as they relate to postconviction petitions, Washington was required to plead full facts to support each individual claim.’”Washington v. State, 95 So. 3d 26, 59 (Ala. Crim. App. 2012). ‘The pleading requirements of Rule 32 apply equally to capital cases in which the death penalty has been imposed.’ Taylor v. State, 157 So. 3d 131, 140 (Ala. Crim. App. 2010).”
Harris, 365 So. 3d at 1089-90.
The circuit court also summarily dismissed some of Belcher‘s claims on the merits. Importantly, the circuit judge who ruled on Belcher‘s postconviction petition was the same judge who had presided over
” ‘[n]either this Court nor the Alabama Supreme Court has ever held that an evidentiary hearing must be conducted on every postconviction petition that raises a claim of ineffective assistance of counsel. Such a requirement would burden an already overburdened judiciary. “An evidentiary hearing on a coram nobis petition [now Rule 32 petition] is required only if the petition is ‘meritorious on its face.’ Ex parte Boatwright, 471 So. 2d 1257 (Ala. 1985).” Moore v. State, 502 So. 2d 819, 820 (Ala. 1986).’
”Jackson v. State, 133 So. 3d 420, 444-45 (Ala. Crim. App. 2009). See also Ex parte Hill, 591 So. 2d 462, 463 (Ala. 1991) (‘[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.‘); and
Partain v. State, 47 So. 3d 282, 286 (Ala. Crim. App. 2008) (‘[A] circuit judge who has personal knowledge of the facts underlying an allegation of ineffective assistance of counsel may summarily deny that allegation based on the judge‘s personal knowledge of counsel‘s performance.‘).”
Harris, 365 So. 3d at 1089-90.
Finally, “[w]ith certain exceptions not applicable here, ‘this Court may affirm the judgment of the circuit court for any reason, even if it is not for the reason stated by the circuit court.’ ” Harris, 365 So. 3d at 1091 (quoting Acra v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012)).
Analysis
Belcher asserts six general arguments on appeal: that the circuit court erred by summarily dismissing his claim that Juror J.D.H. committed misconduct by failing to disclose his son‘s criminal convictions, that the circuit court erred by refusing to equitably toll the deadline to amend his petition, that the circuit court erred by summarily dismissing his claims that counsel rendered ineffective assistance during the penalty phase of his capital-murder trial, that the circuit court erred by summarily dismissing his claims that counsel rendered ineffective assistance at the guilt phase of his capital-murder trial, that the circuit court erred by failing to grant him discovery, and that application of the
None of these arguments entitles Belcher to relief.
I. Juror-Misconduct Claim
Belcher first contends that the circuit court erred by summarily dismissing his postconviction claim that “Juror J.D.H. failed to disclose, in response to multiple questions on the [juror] questionnaire, that his son, P.D.H., had been arrested four times in the year leading up to Belcher‘s trial.” (Belcher‘s brief, p. 10.) More specifically, the juror questionnaire, completed on March 5, 2019, asked if “you, a family member or relative, or a close friend” had “ever been involved in a criminal case as a defendant, victim, witness, or complainant,” and J.D.H. responded “no.” (C. 57; J.D.H.‘s juror questionnaire.) The questionnaire also asked if “you or a family member or relative or close friend” had “ever been arrested for or charged with an offense other than a simple traffic violation,” and J.D.H. responded affirmatively, but he stated “only that he personally had been charged with a crime that was not a felony.” (C. 57; J.D.H.‘s juror questionnaire.) Finally, when asked if he personally knew “anyone who has been convicted or pleaded guilty to a crime,” J.D.H. responded “yes,” but he left the section blank that
According to Belcher, J.D.H. failed to include the following information about his son on the juror questionnaire: “[o]n March 15, 2018, J.D.H.‘s son, P.D.H., was arrested in Jefferson County for first-degree theft of property” and was released on bond on March 26, 2018; “[o]n March 26, 2018, P.D.H. was arrested for third-degree burglary in Tuscaloosa County and placed in the Tuscaloosa County Jail and was released on bond on May 8, 2018; “[o]n July 21, 2018, P.D.H. was arrested for public intoxication in Tuscaloosa County and was released on bond the next day“; and “[o]n August 14, 2018, P.D.H. was arrested for carrying a pistol without a permit in Tuscaloosa County and was released on bond.” (C. 57-58.) Belcher further alleged that, “[o]n August 18, 2018, this Court revoked P.D.H.‘s bond on the burglary charge” and that he was “placed back in the Tuscaloosa County Jail on August 27, 2018.” (C. 58.) “On October 25, 2018, P.D.H. [pleaded] guilty to the burglary and was sentenced to 46 months split with 6 months to serve in the county jail,”
Belcher further contended in his petition that if counsel had known about P.D.H.‘s arrests and convictions, counsel would have also learned that P.D.H. and Belcher had been housed in the same cell and had a dispute, which resulted in the changing of cells and Belcher and P.D.H. avoiding each other, which, he said, jail records and a witness, James Wilson, could have confirmed. Belcher also alleged that, because the address listed for P.D.H. in court records was the same address listed for J.D.H. on the venire list, “J.D.H. and P.D.H. lived together at the time of
In its order summarily dismissing Belcher‘s petition, the circuit court found that this juror-misconduct claim was insufficiently pleaded and “merely speculative.” (C. 706-07.) We agree that Belcher did not meet his burden of pleading his juror-misconduct claim with specific facts that, if true, would entitle him to an evidentiary hearing.
“The proper standard for determining whether juror misconduct warrants a new trial ... is whether the misconduct might have prejudiced, not whether it actually did prejudice, the defendant.” Ex parte Dobyne, 805 So. 2d 763, 771 (Ala. 2001). However, we need not consider whether Belcher pleaded facts that, if true, might have prejudiced him had they been known because Belcher did not plead any facts to show that J.D.H. was aware of P.D.H.‘s criminal history and interactions with Belcher, much less that he failed to answer the questionnaire truthfully. Belcher alleged that P.D.H. was arrested and convicted for crimes near the time
“First and foremost, when pursuing a claim of juror misconduct, the [defendant] must establish the misconduct actually occurred.” Jackson v. State, 133 So. 3d 420, 441 (Ala. Crim. App. 2009). ” ‘A defendant [seeking relief] on the basis of juror misconduct has the initial burden to prove that a juror or jurors did in fact commit the alleged misconduct.’ ” Id. (quoting Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997)). “Parties ... are entitled to true and honest answers to their questions on voir dire.” Ex parte Dobyne, 805 So. 2d at 771. But, for any juror misconduct to occur, the juror must first know about the information and fail to truthfully disclose it. Id. Belcher, however, never alleges that J.D.H. was aware of P.D.H.‘s alleged recent arrests and convictions. Rather, he speculates that J.D.H. was aware based on his familial relationship to P.D.H. and the fact that P.D.H. had provided his father‘s address on an unknown document and his further speculation that P.D.H.‘s having
Trial counsel asked numerous questions during voir dire but never asked the prospective jurors about whether any of them or their family
Finally, J.D.H. responded “yes” to the question regarding whether he knew anyone who had been convicted of or had pleaded guilty to a crime but did not elaborate in the space provided, as instructed. Thus, trial counsel was aware that J.D.H. knew someone who had been convicted of or had pleaded guilty to a crime.6 If counsel desired further information about this in striking the jury, trial counsel could have asked J.D.H. during voir dire but did not. Counsel could have asked whether J.D.H. did not elaborate because he was referring to himself, which he had already explained in responses to the two previous questions regarding whether he or a family member had ever been arrested or convicted, or whether J.D.H. was referring to another family member and, if so, counsel could have asked this person‘s identity and the details
In sum, it was Belcher‘s burden to plead facts that, if true, entitled him to relief, and Belcher failed to meet this burden, merely speculating that J.D.H. was likely aware of P.D.H.‘s recent arrests and convictions, that J.D.H. and P.D.H. likely lived together, that P.D.H. had likely shared his jail experiences with his father, and that, had J.D.H. provided his son‘s criminal history on the juror questionnaire, counsel likely would have asked for additional details and then likely discovered that P.D.H. had once shared a jail cell with Belcher and that they had negative interactions. The circuit court thus properly summarily dismissed this claim.
II. Equitable Tolling
Belcher next contends that the circuit court erred by not accepting an amendment to his petition in which he alleged a new juror-misconduct claim regarding a different juror. Belcher argues that he was entitled to
On September 17, 2021, approximately four months after filing his petition for postconviction relief, Belcher filed an amendment to Claim I of his petition, arguing that the COVID-19 pandemic had prevented him “from conducting the investigation necessary to uncover the juror misconduct claim that he presents in this amendment,” and that equitable tolling was therefore warranted, and requesting that the circuit court accept his amendment. (C. 526-33.) The State moved to strike Belcher‘s amendment, contending that, under the FJA and
In 2017, the FJA statutorily established the procedures governing postconviction proceedings for criminal defendants who are convicted of capital murder and sentenced to death after August 1, 2017. See Ex parte Marshall, 323 So. 3d 1188, 1190 (Ala. 2020)
“(a)
Rule 32.2(c) of the Alabama Rules of Criminal Procedure shall not apply to cases in which a criminal defendant is convicted of capital murder and sentenced to death, and files a petition for post-conviction relief under the grounds specified inRule 32.1(a) , (e), or (f) of the Alabama Rules of Criminal Procedure.“(b) Post-conviction remedies sought pursuant to
Rule 32 of the Alabama Rules of Criminal Procedure in death penalty cases shall be pursued concurrently and simultaneously with the direct appeal of a case in which the death penalty was imposed. In all cases where the defendant is deemed indigent or as the trial judge deems appropriate, the trial court, within 30 days of the entry of the order pronouncing the defendant‘s death sentence, shall appoint the defendant a separate counsel for the purposes of post-conviction relief under this section. ...“(c) A circuit court shall not entertain a petition for post-conviction relief from a case in which the death penalty was imposed on the grounds specified in
Rule 32.1(a) of the Alabama Rules of Criminal Procedure unless the petition, including any amendments to the petition, is filed within 365 days of the filing of the appellant defendant‘s first brief on direct appeal of a case in which the death penalty was imposed pursuant to the Alabama Rules of Appellate Procedure.“(d) A circuit court, before the filing date applicable to the defendant under subsection (c), for good cause shown and after notice and an opportunity to be heard from the Attorney General, or other attorney representing the State of Alabama,
may grant one 90-day extension that begins on the filing date applicable to the defendant under subsection (c). “(e) Within 90 days of the filing of the state‘s answer to a properly filed petition for post-conviction relief, the circuit court shall issue an order setting forth those claims in the petition that should be summarily dismissed and those claims, if any, that should be set for an evidentiary hearing. If the properly filed petition for post-conviction relief is still pending at the time of the issuance of the certificate of judgment on direct appeal, the court in which the petition is pending shall issue a final order on the petition or appeal within 180 days.
“(f) If post-conviction counsel files an untimely petition or fails to file a petition before the filing date applicable under this section, the circuit court shall direct post-conviction counsel to show good cause demonstrating extraordinary circumstances as to why the petition was not properly filed. After post-conviction counsel‘s response, the circuit court may do any of the following:
“(1) Find that good cause has been shown and permit counsel to continue representing the defendant and set a new filing deadline for the petition, which may not be more than 30 days from the date the court permits counsel to continue representation.
“(2) Find that good cause has not been shown and dismiss any untimely filed petition.
“(3) Appoint new and different counsel to represent the defendant and establish a new filing deadline for the petition, which may not be more than 270 days after the date the circuit court appoints new counsel. In the instance that this subdivision is applicable and new counsel is
appointed, the circuit court in which the petition is pending shall issue a final order on the petition or appeal within 180 days of the filing of the petition. “(g) The time for filing a petition for post-conviction relief under
Rule 32.1(f) in a case in which the death penalty was imposed shall be six months from the date the petitioner discovers the dismissal or denial, irrespective of the deadlines specified in this section. This provision shall not extend the deadline of a previously filed petition underRule 32.1 of the Alabama Rules of Criminal Procedure .“(h) Any petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section is untimely.
Rule 32.7(b) of the Alabama Rules of Criminal Procedure shall not apply to any amendments to a petition for post-conviction relief filed pursuant to this section after the filing date that is applicable to the defendant under this section. Any amendments to a petition for post-conviction relief filed pursuant to this section filed after the filing date that is applicable to the defendant under this section shall be treated as a successive petition underRule 32.2(b) of the Alabama Rules of Criminal Procedure .“(i) The circuit court shall not entertain a petition in a case in which the death penalty has been imposed based on the grounds specified in
Rule 32.1(e) of the Alabama Rules of Criminal Procedure unless the petition for post-conviction relief is filed within the time period specified in subsection (c) or (d), or within six months after the discovery of the newly discovered material facts, whichever is later.“(j) This section shall apply to any defendant who is sentenced to death after August 1, 2017.”
“The court shall not grant relief on a successive petition on the same or similar grounds on behalf of the same petitioner. A successive petition on different grounds shall be denied unless (1) the petitioner is entitled to relief on the ground that the court was without jurisdiction to render a judgment or to impose sentence or (2) the petitioner shows both that good cause exists why the new ground or grounds were not known or could not have been ascertained through reasonable diligence when the first petition was heard, and that failure to entertain the petition will result in a miscarriage of justice.”
Before addressing Belcher‘s equitable-tolling arguments, we initially note that Belcher could have attempted to show the circuit court that his amendment satisfied the requirements for a successive petition under
In Ex parte Ward, the Alabama Supreme Court recognized that, although “the limitation provision of
Belcher fails to acknowledge that, under the FJA,
Separation-of-powers principles also support our holding that equitable tolling does not apply to the FJA‘s filing deadline. Unlike Rule 32, which was promulgated by the Alabama Supreme Court, the FJA is a statute promulgated by the legislature. The FJA‘s provisions already provide courts the discretion to consider “extraordinary circumstances” and provide specific remedies, including extensions of the filing deadline, upon a finding of “good cause demonstrating the extraordinary circumstances.” It is not within the province of the judiciary to disregard those express provisions -- unless those provisions are themselves unconstitutional.8 See, e.g., Ex parte Bailey, [Ms. CR-2024-0635, May 2, 2025] ___ So. 3d ___, ___ (Ala. Crim. App. 2025) (“[T]his Court will not
In sum, application of the judicially created doctrine of equitable tolling, which is applicable in postconviction proceedings governed by Rule 32, is not applicable in postconviction proceedings governed by the FJA. The FJA specifically recognizes the need for equitable exceptions, provides the standards governing those exceptions, and provides specific remedies when there is “good cause demonstrating extraordinary circumstances.”
Equitable tolling is also inapplicable to the treatment of amendments under the FJA. In the criminal context, “[t]he doctrine of equitable tolling is an exception only to the limitations provision of
Finally, it is also noteworthy that, even if equitable tolling were applicable to either the filing deadline or the treatment of amendments under the FJA, Belcher never set forth sufficient facts that would qualify him for equitable tolling. Belcher generally contends that the COVID-19 pandemic impeded his ability to investigate and present his postconviction claims, but he never set forth any specific allegations regarding why he was unable to discover the facts contained in his amendment before or during the COVID-19 restrictions. Even in his brief on appeal, the closest Belcher comes to making any specific allegation regarding how he was impeded from getting information is his general
For all these reasons, Belcher is not entitled to relief on this claim.
Belcher also contends that the circuit court erroneously dismissed his multiple penalty-phase ineffective-assistance-of-counsel claims without a hearing.
In considering Belcher‘s ineffective-assistance-of-counsel claims, we apply the following well-settled legal principles:
” ‘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).
” ’ “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 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.
” ’ “[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 [(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, [466 U.S. at 693,] 104 S. Ct. at 2067. Different lawyers have different gifts; this 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. …” ” ’Chandler v. United States, 218 F.3d 1305, 1313-14 (11th Cir. 2000) (footnotes omitted).
” ‘An appellant is not entitled to “perfect representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). “[I]n considering claims of ineffective assistance of counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’ ” Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).’
”Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App. 2013). ...
“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).
In determining whether a petitioner was prejudiced by any deficient performance,
” ’ “a defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” … In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.’ ”
In reviewing Belcher‘s ineffective-assistance claims, we again note that the same judge who presided over Belcher‘s capital-murder trial and sentencing hearing (and who, ultimately, sentenced Belcher to death after independently weighing the aggravating and mitigating circumstances following the jury‘s unanimous recommendation of the death penalty) also ruled on Belcher‘s postconviction petition. The circuit court, thus, considered Belcher‘s claims in light of its own personal observations when it dismissed Belcher‘s myriad ineffective-assistance claims because they were either meritless, insufficiently pleaded, or both.
With these considerations in mind, we review Belcher‘s claim that the circuit court erroneously summarily dismissed each of the following individual penalty-phase ineffective-assistance claims that were made by Belcher in his postconviction petition and are further argued on appeal. As explained below, we hold that the circuit court properly summarily dismissed Belcher‘s penalty-phase ineffective-assistance-of-counsel claims.
Belcher first generally contends, as he did in his petition, that his trial counsel failed to adequately investigate and present mitigation evidence. In support of this claim, Belcher contends that counsel “conducted in-person interviews with only three family members” -- his mother, his father, and his ex-wife. (Belcher‘s brief, p. 30.) Belcher further contends that his sister was “interviewed only once by phone” and that counsel failed to “collect basic records ... court records, school records, medical records, military records, drug-treatment records, police records, and jail records,” which, he says, left counsel “unaware of important mitigating facts.” (Belcher‘s brief, p. 30.)
We initially question whether Belcher‘s contentions in his petition and his brief on appeal, and his generalized assertion that the circuit court improperly dismissed this claim based on “strategy” when, he says, counsel‘s failure to investigate rendered counsel unable to make a “strategic decision,” and his citing cases discussing the obligation to conduct a mitigation investigation, with no explanation as to their holdings or applicability here, is sufficient to comply with
In considering Belcher‘s myriad penalty-phase claims regarding mitigation evidence, we recognize that “[c]ounsel‘s obligation is to conduct a ‘substantial investigation into each of the plausible lines of defense.‘” Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999) (quoting Strickland, 466 U.S. at 681). ” ‘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. (quoting Strickland, 466 U.S. at 686). Moreover,
” ‘[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.’ ”
Id. (quoting, Strickland, 466 U.S. at 691).
Finally,
” ‘[w]hether trial counsel were ineffective for not adequately investigating and presenting mitigating evidence ” ‘turns upon various factors, including the reasonableness of counsel‘s investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented.’ ” McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017) (quoting Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013)).’
”Woodward v. State, 276 So. 3d 713, 773-74 (Ala. Crim. App. 2018).”
State v. Mack, [Ms. CR-2023-0284, Dec. 20, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024). Thus, “when evaluating any case of ineffective assistance of counsel related to the penalty phase of a capital-murder trial, we must consider what counsel did, in fact, present in the way of mitigation.” Mack, ___ So. 3d at ___. ” ’ “Although petitioner‘s claim is that his trial counsel should have done something more, we first look at what the lawyer did in fact.” ’ ” Id. at ___ (quoting Ray, 80 So. 3d at 979, quoting in turn Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000)).
In its sentencing order, the trial court (we again note that the circuit-court judge who ruled on Belcher‘s postconviction petition was also the trial-court judge) noted that, on March 14, 2019, the jury
“The State presented evidence of two aggravating circumstances: 1) that the capital offense was committed while the Defendant was engaged in a Kidnapping in the First Degree; and (2) that the capital offense was especially heinous, atrocious, or cruel compared to other capital cases. The State presented testimony from the victim‘s mother, Suzanne Payne, and from West Alabama Violent Crimes Unit Inv. Richard Wilkins. ...
“[Belcher] presented evidence in mitigation from the following witnesses: Tuscaloosa County Sheriff‘s Deputy Mike Byars, R. Randall Griffith, Vicky Belcher, Brad Belcher, Brandy Belcher, Debby Hicks, and Carol Belcher. ...
“The Court provided the jury with two verdict forms. The first being a ‘Special Verdict Form’ in order to determine whether the State had unanimously satisfied the jury beyond a reasonable doubt that the instant case was a capital offense that was especially heinous, atrocious and cruel compared to other capital offenses. A second verdict form was given, a general verdict form, in order to determine whether the jury would render an advisory verdict of death or life imprisonment without the possibility of parole; including the numbers of jurors so voting for those options.
“After due deliberations, the jury returned a verdict that they were unanimously satisfied beyond a reasonable doubt that the capital offense … was especially heinous, atrocious and cruel compared to other capital offenses. Moreover, the jury returned an advisory verdict recommending to the Court that the penalty in [Belcher‘s] case should be death. Twelve jurors voted in favor of death. None voted in favor of life imprisonment without the possibility of parole. The jury was polled as to the aggravating circumstance of heinous, atrocious and cruel, and the verdict was unanimous. The jury was further polled as to the 12-0 advisory verdict of death .... “During the penalty phase of the trial, the State offered all evidence admitted in the guilt phase. ... The motion was granted. In doing so, the State presented evidence of one aggravating circumstance -- under
§ 13A-5-49(4), [Ala. Code 1975,] a capital offense was committed while the defendant was engaged in a kidnapping.“Th[e State] also presented evidence from Inv. Richard Wilkins, who had testified during the guilt phase. Inv. Wilkins testified that he had been an investigator in [the] Violent Crimes Unit since 2012. He testified that no other case in his experience and memory demonstrated the level of violence, cruelty and torture as found in this case. In doing so, the State presented evidence of a second aggravating circumstance -- under
§ 13A-5-49(8) , the capital offense was especially heinous, atrocious, or cruel compared to other capital offenses.“The State also offered additional testimony from Suzanne Payne, the victim‘s mother.
“The Defendant offered the following testimony in mitigation:
“Tuscaloosa County Sheriff‘s Deputy Mike Byars: Deputy Byars testified regarding his interactions with
[Belcher] during [Belcher‘s] incarceration. The deputy recalled one outburst of anger from [Belcher], for which he soon apologized. He testified [Belcher] was a well-behaved inmate. “Dr. Randall Griffith: Dr. Griffith testified he diagnosed [Belcher] with Mild Neuro-Cognitive Disorder. This disorder can affect thinking ability and memory. The disorder can cause a person to be impulsive and paranoid. Dr. Griffith believes this disorder arose in [Belcher] because of multiple head injuries he sustained while racing motorcycles. Dr. Griffith conceded that [Belcher‘s] cognitive problems could also be caused by drug use.
“….
“Brad Belcher: [Belcher‘s] father testified about the close relationship he had with his son in early years. [Belcher] learned to ride and race motorcycles at an early age. He testified that, as an adult, [Belcher] changed dramatically after getting married and having a daughter. He became a doting father. However, after [Belcher] divorced and lost primary custody of his child, it became the darkest time in [Belcher‘s] life. Belcher testified that he did not know the extent of his son‘s drug problems until these events occurred.
“Brandy Belcher: [Belcher‘s] younger sister testified that her brother is kind and loving. He loves animals. He is a very talented mechanic.
“Debby Hicks: Hicks is [Belcher‘s] aunt. She testified [Belcher] was always kind and protective of her daughter; his younger cousin. She also testified that he was a doting father with his own child.
“Carol Belcher: [Belcher‘s] mother testified she had seen a change in him since he had been [in] jail. His Christian faith had grown. She said they pray together on the phone.
“All family members testified of their desire to maintain a strong relationship with [Belcher] should he be sentenced to life in prison.”
(C. 33-34, 43-45.)
The trial court stated its findings from the sentencing hearing, in pertinent part, as follows.
“The Court reviewed the sentencing memorandum filed April 1st on behalf of the Defendant. The pre-sentence report prepared by the probation office was admitted as a Court exhibit in these proceedings. The Court having been the trial court and having heard all testimony in this matter adopts all evidence previously presented in the guilt phase and the penalty phase, both proceedings being held before the Court and the evidence being presented before the jury in both hearings is incorporated in this hearing and is to be considered by the Court in affixing punishment.
“The State called no witnesses. The Defendant called no witnesses but offered the sentencing memorandum as an exhibit in these proceedings. No further argument was made by either the State or the Defendant. When the Court asked the Defendant if he had anything to say before sentence was pronounced, he made a brief statement, professing his Christian faith and apologizing for the events leading to the victim‘s death.
“All the above was considered by the Court in making the following findings regarding aggravating and mitigating circumstances.”
(TR. 163-64.)
“Mitigating circumstance number one, under
§ 13A-5-51(1), [Ala. Code 1975,] the defendant has no significant history of prior criminal activity, does apply and was given its due weight.“Mitigating circumstance number two, under
§ 13A-5-51(2) , the capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance, does not apply. The Court has considered the opinion that the Defendant suffers from Mild Neuro-Cognitive Disorder. However, the Court is not convinced from the evidence that any such disorder rises to the level of being an extreme mental or emotional disturbance such that it is a statutory mitigating circumstance. Accordingly, the Court finds that the Defendant‘s diagnosis of Mild Neuro-Cognitive Disorder is a non-statutory mitigating circumstance.“….
“Mitigating circumstance number five, under
§ 13A-5-51(5) , the defendant acted under extreme duress or under the substantial domination of another person, does not apply.
“Mitigating circumstance number six, under § 13A-5-51(6) , the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired, does not apply. As stated, the Court has considered the opinion that the Defendant suffers from Mild Neuro-Cognitive Disorder. However, the Court is not convinced from the evidence that any such disorder rises to the level of substantially diminishing the defendant‘s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law, such that it is a statutory mitigating circumstance. The Court finds that the Defendant‘s drug usage is, instead, a non-statutory mitigating circumstance.“Mitigating circumstance number seven, under
§ 13A-5-51(7) , the age of the defendant at the time of the crime, does not apply. The Defendant was thirty (30) years old at the time of the crime.”
(C. 48-49.)
The trial court found the following nonstatutory mitigating circumstances:
“Non-statutory mitigating facts under
§ 13A-5-52[, Ala. Code 1975,] can be wide-ranging and ‘shall include any aspect of a defendant‘s character or record and any of the circumstances of the offense that the defendant offers as a basis for a sentence of life imprisonment without parole instead of death, and any other relevant mitigating circumstance which the defendant offers.’ The Court has considered each non-statutory mitigator offered by Defendant to the extent it is supported by evidence. Those non-statutory mitigating circumstances found to be present, and considered by this Court include:
“The Defendant‘s desire to maintain a strong relationship with his daughter and his family, and desire of his daughter and family to maintain a strong relationship with him; “The Defendant‘s good behavior as an inmate;
“The Defendant‘s ability to be a productive prisoner in teaching mechanic skills to other prisoners and in leading Bible studies;
“The Defendant‘s Mild Neuro-Cognitive Disorder;
“The Defendant‘s drug usage;
“The sentences of co-Defendants pursuant to plea agreements, particularly the split sentence of co-Defendant Bruce;
“The pleas of mercy on the Defendant‘s behalf, made by his attorneys and family members. While it is impossible to quantify a plea for mercy, this Court finds that Defendant sufficiently raised the issue, and thus this Court has given Defendant‘s plea for mercy consideration.
“No other non-statutory mitigating circumstances exist. The Court specifically finds that the non-statutory mitigating circumstance of remorse does not exist in this case.”
(C. 50-51.)
The trial court concluded:
“After consideration of all the matters presented to the Court, the testimony heard during the guilty phase and penalty phase of trial, both in mitigation and aggravation, the pre-sentence investigation report and the recommendation of the jury contained in its advisory verdict, and after taking into
consideration all of the other matters that were proffered to this Court, disregarding any references to passion, or prejudice or emotion, the Court does now find and is convinced beyond a reasonable doubt that in this case the aggravating circumstances outweigh the mitigating circumstances, and the Court does concur with the jury‘s recommendation and does hereby affix Michael David Belcher‘s punishment at death, by lethal injection.”
(TC. 169.)
Belcher‘s postconviction petition asserted that two witnesses would have indicated that Belcher was remorseful for Samantha‘s death. It is noteworthy that the trial court‘s sentencing order expressly found that the nonstatutory mitigating circumstance of remorse did not exist in Belcher‘s case. Even a cold reading of Belcher‘s testimony supports the finding that Belcher was devoid of remorse. See, e.g., (TR. 965 (Belcher told the others, “Don‘t kill her here [in his father‘s shop]“)); (TR. 968 (He had “no idea what they was doing” and “they” were doing everything; he was just “watching“)); (TR. 969-75 (Belcher acknowledged helping “them” put Samantha in his car and transporting her to Alyssa‘s father‘s house, putting her in the trunk of his car, stopping so they could put her back when she somehow escaped the moving car, and eventually helping Steven George place her in the woods, but he continually says that “they” were hitting, kicking, pulling, stabbing, and jabbing her, and that he “just
Before considering Belcher‘s individual claims, we also note that the record shows that Belcher‘s counsel employed a mitigation expert, Dr. Griffith, to assist with the penalty phase. Moreover, the circuit court, in its order summarily dismissing Belcher‘s petition, found that trial counsel‘s mitigation investigation, strategy, and presentation of evidence were reasonable.
“[I]t is clear upon the face of the record and from what the Court observed at trial that trial counsel chose a strategy of emphasizing Belcher‘s positive qualities in a reasonable attempt to show Belcher was a good, decent person who made a mistake but who could still adapt and contribute to society with a sentence of life without parole.”
(C. 789.)
The circuit court further explained in its order:
“Counsel put on evidence that Belcher is a good person (R. 1150-52, 1154-55), whose poor choices were informed by his mild neurocognitive disorder which impacts his thinking and memory capabilities (R. 1109-10); he has no significant criminal history (R. 1099); he has served in the military (C.
380-81; R. 1142-43); he is close with his family (R. 1142, 1147-48, 1150, 1152, 1154-55, 1162, 1164-70); he has a daughter whom he loves and who loves him (R. 1139, 1140, 1144, 1148, 1151, 1155-56, 1163); he is a responsible father (R. 1143-44, 1151, 1155); and importantly, he can adjust well to prison life.10 (R. 1101-02, 110, 1115, 1117, 1138, 1169.)”
(C. 789.) Thus, trial counsel‘s strategy was not that Belcher was a person whose sad circumstances had caused his actions and justified life imprisonment without parole but, rather, was arguably the more persuasive strategy that Belcher had truly changed since going to jail and becoming sober, committing to Christ, participating in Bible studies, and teaching other prisoners. In short, counsel attempted to show, and expressly argued, that Belcher was, at the time of the trial, “a person whose life is worth saving.” (TR. 1099.) Moreover, counsel attempted to show that Belcher‘s life should be spared by presenting the testimony of six witnesses, including family and friends, a jail guard, and Dr. Griffith (the neuropsychologist); presenting letters from family and friends, a slideshow made by Belcher‘s mother, and a picture of Belcher‘s daughter;
The circuit court did not abuse its discretion by finding that this general claim, which is really nothing more than an attempt to fault trial counsel for not pursuing a more exhaustive theory of mitigation, was without merit. See, e.g., Bush v. State, 92 So. 3d 121, 160 (Ala. Crim. App. 2009) (“‘The fact that this defense strategy was ultimately unsuccessful with the jury does not render counsel‘s performance deficient.‘” (quoting Heath v. State, 3 So. 3d 1017, 1029 (Fla. 2009))). In sum, the circuit court properly found that “defense counsel‘s strategy in mitigation was reasonable and that additional evidence presented at the postconviction hearing would have been cumulative to evidence presented by trial counsel or would have been inconsistent with evidence presented to support trial counsel‘s reasonable strategy.” McWhorter, 142 So. 3d at 1237.
Moreover, to the extent that Belcher also baldly contends on appeal that the circuit court erred by failing to evaluate the cumulative effect of counsel‘s alleged deficiencies, this claim is waived under
B. Brain Injuries
Belcher argues that the circuit court erroneously dismissed his claim that trial counsel should have investigated and presented myriad evidence to show that he suffered repeated traumatic brain injuries (“TBI“) as a motorcycle racer that caused “lasting brain damage” and may have caused him to develop chronic traumatic encephalopathy (“CTE“). (Belcher‘s brief, p. 32.)
In his petition, Belcher pleaded the names of multiple friends and family members who could have testified regarding the risky nature of motorcycle racing; “a number of specific serious wrecks” Belcher had; and the belief that, because of those accidents, he had headaches, was impulsive, engaged in risky behavior, and had “impaired executive
Finally, Belcher alleged that counsel were ineffective because they provided “inadequate and inaccurate information” to experts and provided an inadequate amount of time for evaluations. (C. 142.) Specifically, although Belcher‘s competency to stand trial and his mental
As for the timing of Dr. Griffith‘s report and whether something more could have been done, Dr. Griffith indicated that he had all the necessary information to provide a complete and accurate assessment of Belcher and, specifically, that brain scans were not necessary. (TR. 1122, 1135). Moreover, the record indicates that counsel was working with
Clearly, the trial court and the jury heard ample evidence regarding Belcher‘s neurocognitive deficits and that they were likely caused by TBI he incurred while racing motorcycles. Counsel‘s performance is not constitutionally deficient simply because they could have presented additional, cumulative evidence that Belcher had “mild neurocognitive impairment,” that it was caused by TBI, specifically, by numerous head injuries from motorsports, or that, even if caused by his drug use, his drug use itself could be caused by the numerous head injuries. See, e.g., McWhorter, 142 So. 3d at 1237 (noting that “additional evidence ... would have been cumulative to evidence presented by trial counsel or would have been inconsistent with evidence presented to support trial counsel‘s reasonable strategy“). Moreover, Belcher never “sufficiently pleaded how
In addition to being cumulative, many of Belcher‘s contentions, though specific, are also, as the circuit court found, speculative. “For example, Belcher pleads that [witnesses] would have testified that he was a good, talented racer, and ... that Belcher showed good sportsmanship. But Belcher does not explain how such testimony ... relate[s] to head injuries.” (C. 796.) Being a good racer is not mitigation evidence, was cumulative to what his family testified to, and speculative. “Speculation is not sufficient to satisfy a [postconviction] petitioner‘s burden of pleading.” (C. 794-96 (quoting Mashburn, 148 So. 3d at 1125).)
Belcher also failed to sufficiently plead how the medical records he cited are relevant to his “brain damage.” Although Belcher pleaded two specific hospital records that should have been obtained and presented, he pleaded only that they would have confirmed motorcycle accidents and surgeries to repair his shoulder and ankle, not that those records would have shown head injuries.
Likewise, Belcher did not plead how school records allegedly showing his poor grades beginning in the 7th grade and his expulsion in
Counsel is also not ineffective for failing to retain a different expert. Belcher contends, as he did in his petition, that Dr. Erin Bigler could have confirmed that Belcher suffered from TBI and better explained his TBI symptoms. However, Belcher was evaluated by two independent experts, Dr. Ronan and Dr. Griffith, before trial. Thus, this is not a situation where counsel failed to employ any experts. Moreover, ” ’ “[d]efense counsel is entitled to rely on the evaluations conducted by qualified mental health experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” ’ ” White v. State, 343 So. 3d 1150, 1176 (Ala. Crim. App. 2019) (quoting McMillan v. State, 258 So. 3d 1154, 1177 (Ala. Crim. App. 2017), quoting in turn Darling v. State, 966 So. 2d 366, 377 (Fla. 2007)). In addition, as already stated, although Belcher contends that Dr. Bigler could have provided more detailed or more conclusive testimony, the testimony would nonetheless be largely cumulative of Dr. Griffith‘s testimony at trial -- that Belcher suffered from a mild neurocognitive disorder caused by motorcycle accidents and drug use, which are the same two causes Belcher contends in his petition, albeit in more detail. Moreover, some of these details, such as that “a subset of people with TBI experience issues with aggression” and that “[r]epeated TBI would make this more likely and aggression is frequently seen in cases of CTE,” would have been a “double-edged sword” and inconsistent with trial strategy, which was clearly to show that Belcher was a different person now and able to help others, not that he was predisposed to “aggression” because of TBI and CTE. Evidence that is cumulative, inconsistent with trial strategy, or potentially as harmful as helpful in mitigation does not establish deficient performance. See, e.g., McWhorter, 142 So. 3d at 1237, 1249.
Moreover, some of the facts pleaded in the postconviction petition directly contradict what Belcher told Dr. Griffith, and Belcher has
Belcher also contends that counsel should have shown that he had poor adaptive functioning; however, Belcher‘s working memory was in the average range, his “overall executive functioning was average,” and he told Dr. Griffith that he was paying for his daughter to attend private school. (TC. 379, 384; C. 800-01.) As the circuit court recognized, “confirmation of a traumatic brain injury would not have changed the overall finding that Belcher‘s neurocognitive abilities fell within an average range.” (C. 805 (citing TR. 1125-26).) Thus, the contentions that Belcher suffered from poor adaptive functioning were refuted by the record on direct appeal, and such claims are properly summarily
Finally, the circuit-court judge (who also presided over Belcher‘s trial) was in the best position to determine the value of the additional factual allegations regarding cognitive defects and their cause. Considering the evidence presented during the penalty phase of Belcher‘s
C. Military Service
Belcher contends, as he did in his petition, that trial counsel failed to adequately investigate and present evidence regarding his military service, specifically that it would have been mitigating that he enlisted during a time when the United States was at war in Iraq and Afghanistan, that he had positive changes during that time, and that he suffered a “significant mental health crisis” during that time. (C. 150-51.) Belcher enlisted on September 29, 2005, and from “December 15, 2005, to February 1, 2006, Mr. Belcher‘s mental health was evaluated at least six times, and he was diagnosed with depression, anxiety, and adjustment disorders.” (C. 151, 153.) Belcher was discharged from the military on March 10, 2006, nearly a decade before Samantha‘s murder.
In sum, the circuit court properly summarily dismissed this claim because Belcher did not plead how this additional information from his time in the military would have made a “meaningful difference” and, moreover, because it is meritless. (C. 799.)
Belcher contends that trial counsel failed to adequately investigate and present evidence regarding the divorce and custody battle he had with his ex-wife, specifically, that he was “an extremely devoted father” and that losing custody of his daughter and her suddenly moving caused him to “relapse into drug” use in the weeks before the offense.12 (Belcher‘s brief, pp. 46-47.) This claim was also properly summarily dismissed because it was also insufficiently pleaded and meritless.
Again, the information Belcher contends should have been presented, although more detailed, is merely cumulative to the testimony presented, and “counsel cannot be ineffective for failing to present cumulative evidence.” (C. 815.) See, e.g., Peraita, supra. As the circuit court noted, there was testimony about Belcher‘s marriage, about the birth of his daughter, that he was a protective and doting father who changed diapers and later sent his daughter to private school, that he had a lot of problems with custody after the divorce and “lost everything
As for the criminal records of his ex-wife‘s girlfriend, allegedly showing that she was violent toward him, Belcher fails to plead any facts to show that this would have been relevant, much less “mitigating.” Belcher also never pleaded what specific Department of Human Resources (“DHR“) records were relevant or what they would have shown other than his “stress” over custody disputes. Nor did Belcher plead how
For all these reasons, this claim was properly summarily dismissed for being insufficiently pleaded, and, in light of the evidence presented, it was without merit. Belcher pleaded no facts that would have made any difference in his sentencing outcome.
E. Counsel‘s Investigation and Presentation of Addiction
Belcher contends that trial counsel failed to adequately investigate and present evidence regarding his addiction to methamphetamine. This claim was insufficiently pleaded. Furthermore, the facts that Belcher pleads should have been presented in mitigation are both cumulative and a double-edged sword and, thus, if true, do not entitle him to relief. See, e.g., McWhorter, supra.
Counsel‘s penalty-phase opening statement painted a picture of Belcher “before he was on drugs,” “who he was when he was on drugs,” and “who he‘s become now that he‘s been in jail and he‘s sober” in a clear
Clearly, additional evidence of Belcher‘s drug use would have been inconsistent with defense strategy. Counsel‘s penalty-phase strategy was to acknowledge his drug use but to emphasize the “good Belcher” before and after the drug addiction, which was clearly a strategic decision. It would have been inconsistent with the defense strategy to emphasize Belcher‘s voluntary drug use when it was just as likely to be considered an aggravating circumstance as a mitigating circumstance. As the circuit court found, “[e]vidence that Belcher was addicted to meth
Furthermore, the additional evidence emphasizing Belcher‘s drug problem would have been a double-edged sword. See, e.g., Davis v. State, 9 So. 3d 539, 566 (Ala. Crim. App. 2008). This is particularly true where, as here, there was little benefit to emphasizing his drug problem because Belcher pleaded no facts indicating that he was “substantially impaired” at the time of the offense so as to support the finding of a statutory mitigating circumstance under
In addition, evidence of Belcher‘s drug use was admitted and additional evidence would have been cumulative. Indeed, the trial court expressly considered Belcher‘s drug usage as a nonstatutory mitigating circumstance, showing that the information pleaded was largely cumulative. As previously noted, counsel does not render ineffective assistance by not presenting cumulative evidence. See, e.g., McWhorter, supra.
Moreover, we note that some of Belcher‘s contentions, on one hand, amount to his faulting counsel for not retaining an expert to confirm that his deficits were based on TBI, but, on the other hand, are faulting
The circuit court properly summarily dismissed this claim because Belcher‘s argument is “inconsistent with the defense theory of the case or would have been otherwise cumulative.” McWhorter, 142 So. 3d at 1237 (affirming the denial of postconviction relief because “[t]he circuit court found that defense counsel‘s strategy in mitigation was reasonable and that additional evidence presented at the postconviction hearing would have been cumulative to evidence presented by trial counsel or
F. Counsel‘s Investigation and Presentation of Jail Behavior
Belcher also contends that his trial counsel failed to adequately investigate and present evidence of his good behavior since he had been in jail.
In Skipper v. South Carolina, 476 U.S. 1, 7 n.2 (1986), the United States Supreme Court recognized that “evidence of adjustability to life in prison,” specifically, evidence that a defendant is “a well-behaved and disciplined prisoner,” “unquestionably goes to a feature of the defendant‘s character that is highly relevant to a jury‘s sentencing determination.” Belcher‘s trial counsel, in fact, presented this type of mitigating evidence at Belcher‘s trial. However, as with his other failure-to-investigate-and-present-mitigation-evidence claims, Belcher asserts additional, cumulative evidence of his good behavior and positive improvements in jail that, in hindsight, should have been presented. As
Belcher‘s first penalty-phase witness was a guard from the Tuscaloosa Jail who was well acquainted with Belcher and testified that he was a “good” inmate who apologized the one time he broke the rules. Dr. Griffith also testified that Belcher could recover from his addiction to methamphetamine more quickly than one could recover from other brain injuries and that he could function normally. In fact, Dr. Griffith testified that there was nothing that would prevent Belcher from being able to live a “productive life in prison.” (TR. 1117.) Belcher‘s father also testified that Belcher had made positive changes while in jail awaiting trial and that he was a good mechanic who could teach others. He further testified that Belcher had a good relationship with his daughter and tries to be a good father from jail. A family friend wrote, for the jury‘s consideration, that Belcher had “set up a Bible study in the jail” and was “attending the church services available and [wa]s making the most of his situation,” “reading the Bible, studying, and reflecting,” and had made her a cross bookmark. (TR. 1138.) Belcher‘s sister also testified that Belcher made “crosses” in jail. Belcher‘s mother testified
Belcher now contends on appeal, as he did in his petition, that trial counsel should have called additional witnesses to testify about Belcher‘s exceptional behavior and positive changes in prison --
Neither Belcher‘s petition nor his brief to this Court explains how reasonably competent counsel would have known about these additional witnesses, and, notably, Belcher did not plead that he had informed his counsel about these witnesses but that counsel had failed to follow up. “An attorney‘s decision regarding investigation depends ‘critically’ on information received from his or her client.” Broadnax v. State, 130 So. 3d 1232, 1258 (Ala. Crim. App. 2013) (citing Strickland, 466 U.S. at 691). Moreover, the pleaded facts were largely cumulative. See, e.g., Marshall, 182 So. 3d at 596 (” ’ “‘A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.’ ” ’ ” (citations omitted)). In addition, Belcher did not plead how the additional evidence would have changed his sentence. Belcher merely made the conclusory allegation that, had this additional evidence of positive changes been presented, “there is a reasonable probability that the jury would not have recommended …
We thus agree that this claim was properly summarily dismissed as being both insufficiently pleaded and without merit, particularly considering that the circuit-court judge also presided over Belcher‘s trial and sentenced him and was in the best position to consider any effect these allegations could have had on the jury‘s recommendation and his own sentencing determination.
Belcher further contends that trial counsel‘s penalty-phase closing argument was deficient, pointing out that “more” could have been said regarding the various mitigating circumstances that had been presented at trial. The circuit court also properly summarily dismissed this claim as insufficiently pleaded and meritless. (C. 834.)
“It is well settled that closing argument is generally a matter of trial strategy.” Clark v. State, 196 So. 3d 285, 315 (Ala. Crim. App. 2015). As the circuit court found, “[c]ounsel made a reasonable, strategic decision to focus on Belcher‘s potential, and he fails to plead that no other reasonable counsel would have made the same decision.” (C. 834.) “Moreover, Belcher‘s claim that counsel‘s failure to highlight his lack of significant criminal history during closing argument robbed the jury of the opportunity to consider such evidence in mitigation is simply without merit.” (C. 835.) “[W]hile counsel may not have mentioned such evidence in closing, the evidence was presented to the jury during instructions, and this Court weighed it at sentencing.” (C. 835.) “Additionally, nowhere in his petition does Belcher plead what closing statement trial counsel should have given” instead. (C. 835.) Rather, Belcher merely
H. Prejudicial Effect of Counsel‘s Performance
Belcher‘s final penalty-phase ineffective-assistance-of-counsel argument is that, but for counsel‘s deficient performance, “individually and collectively,” in the penalty phase, “there is a reasonable probability that jurors would not have sentenced [him] to death.” (Belcher‘s brief, pp. 63-64.)
Second, the circuit-court judge, who also presided over Belcher‘s capital-murder trial, found that, considering the evidence presented at trial, Belcher had pleaded no facts that, if true, would have resulted in a different verdict or sentence. In short, “the allegedly omitted mitigation evidence would not have affected his decision that the aggravating circumstances outweighed the mitigating circumstances and mandated a death sentence.” Washington, 95 So. 3d at 53. “We agree with the circuit court that the admission of this evidence [which was mostly cumulative,
Here, upon considering the evidence Belcher contends counsel should have presented in mitigation, considering what trial counsel, in fact, presented at his trial, the strength of the evidence (which included Belcher‘s own testimony and overwhelmingly indicated his guilt), and
IV. Guilt-Phase Ineffective-Assistance Claims14
Belcher‘s fourth argument challenges the dismissal of his various claims that his counsel rendered ineffective assistance during the guilt phase of his capital-murder trial. We review these claims in accordance with the same legal principles that governed our review of Belcher‘s penalty-phase ineffective-assistance claims and hold that the circuit court properly summarily dismissed these claims, which were either insufficiently pleaded, meritless, or both.
Belcher contends, as he did in his petition, that trial counsel were ineffective because they did not present evidence to show that his “codefendants were the ones who had beaten and killed [Samantha], [to] challenge the State‘s evidence suggesting Mr. Belcher was the ringleader, and [to] undermine the credibility of Steven George and Chylli Bruce.” (Belcher‘s brief, p. 67; C. 67.)
In considering Belcher‘s guilt-phase claims of ineffective assistance of counsel, we first consider what guilt-phase theory and strategies were employed. In addition, as this Court recognized in Clark v. State, 196 So. 3d 285, 306 (Ala. Crim. App. 2015), ” ‘[t]rial counsel‘s decisions regarding what theory of the case to pursue represent the epitome of trial strategy.’ ” (Quoting Flowers v. State, 370 S.W.3d 228, 232 (2010).) ” ‘What defense to carry to the jury, what witnesses to call, and what method of presentation to use is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.’ ” Id. (quoting State v. Miller, 194 W. Va. 3, 16, 459 S.E.2d 114, 127 (1995)). Moreover, that a defense strategy was ultimately unsuccessful or that another alternative theory existed does not establish deficient performance, much less that
During the guilt phase of his trial, “Belcher‘s defense was that, although he participated in the events that ultimately led to Samantha‘s murder, Steven was the person who actually killed her. Belcher testified on his own behalf” to this effect. Belcher, 341 So. 3d at 253. In addition, Belcher‘s counsel argued that Belcher did not have the requisite intent to kill Samantha and that, if Steven George had not stolen Samantha‘s car and set it on fire, “all of these events wouldn‘t have taken place.” (TR. 1027.) Defense counsel‘s closing argument to the jury emphasized that five people were responsible for beating, binding, and placing Samantha in a trunk; that the State had not shown that Belcher intended Samantha to die because the knife, although it contained Belcher‘s DNA, belonged
In sum, Belcher‘s postconviction contentions regarding alleged ineffective assistance during the guilt phase of his trial amount to nothing more than his belief that the same theory could have been presented more effectively, which will rarely establish either deficient performance or prejudice. Given the additional facts alleged here in light
1. Failure to Implicate Belcher‘s Codefendants
Belcher asserted in his petition that Steven George had a motive to harm Samantha because she had rejected a previous sexual proposition, which he says could have been established from a cellular-telephone extraction and social-media interactions; that Steven George had previously slit a friend‘s throat and been “convicted of assault [2008], menacing [2012], trespass, and disorderly conduct [2014]” (C. 64-65); that Steven George stole four-wheeler parts from customers when he worked for Belcher; that Bruce was romantically interested in Belcher and “may have been motivated” to murder Samantha because of “jealousy“; that Bruce journaled that she prostituted and choked other women; that Bruce had been suspended from school “five times before she was expelled in 2015 for assaulting … a school employee (C. 69); that Bruce had been arrested for various thefts and had a juvenile record; and that Marcus George,15 who played a “substantial role” in the murder, had
The circuit court properly summarily dismissed this claim for being both insufficiently pleaded and meritless.
As the circuit court recognized, trial counsel‘s primary defense theory was that Steven George killed Samantha, and this theory was clearly presented in opening statements. (C. 709 (citing TR. 414).) Steven George admitted at trial that he and Marcus George stole Samantha‘s car, that Steven George took the catalytic converter out of it, that Steven George stabbed a hole in the gas tank and took Samantha‘s gasoline, and that Steven George set Samantha‘s car on fire to destroy the evidence. (TR. 556-58.) “[C]ounsel also elicited an admission that it was Steven George‘s idea to steal Samantha‘s car and burn it, not Belcher‘s, and that Belcher was not involved at all in that event.” (C. 709 (citing TR. 594).). In addition, trial counsel “elicited an admission that Steven George had stolen and destroyed two cars in the past for fun.” (C.
Based on the record, “Belcher‘s claim that counsel did not present a theory of motive that undercut Steven George‘s self-serving testimony is meritless on its face.” (C. 709.) And, his contention that Steven George had an additional motive (other than to steal to support his drug habit and cover up the evidence) to kill Samantha because she had previously rejected his sexual proposition does not indicate deficient performance. See, e.g., Hunt v. State, 940 So. 2d 1041, 1067 (Ala. Crim. App. 2005) (” ‘[T]he mere existence of a potential alternative defense theory is not enough to establish ineffective assistance based on counsel‘s failure to present that theory.’ ” (Quoting Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 513 (S.D.N.Y. 2005))).
As for Belcher‘s arguments regarding prior bad acts committed by the codefendants that he believes counsel should have presented at trial, “Belcher fails to plead how evidence of such history could have … been admitted in accordance with the rules of evidence.” (C. 712.)
“(a) General Rule. For the purpose of attacking the credibility of a witness,
“(1)(A) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and “(B) evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
“(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.
“(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction … unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.”
In short, Belcher did not plead any facts to show how the “bad acts” evidence would have been admissible. Only prior convictions are admissible and only for the purpose of attacking a witness‘s truthfulness. See also
In addition, although three of the prior bad acts Belcher alleged in his petition concern Steven George‘s alleged prior convictions, Belcher also pleaded no facts to show that this evidence would have been admissible. Specifically, Belcher contends that Steven George was convicted in 2008 for “assault and trespass,” but he pleaded no facts that would show that this evidence should have been admitted as an exception to the general prohibition of crimes that occurred more than 10 years before Belcher‘s trial in 2019. See
In addition, some of the “bad acts” evidence Belcher claims counsel did not present was cumulative to evidence that was, in fact, presented at trial. For example, Bruce acknowledged suspensions for fighting other girls in addition to arrests and pending charges for stealing. Steven George acknowledged arrests for a stolen four-wheeler, DUIs, and drug charges. (TR. 544.) Bruce also admitted at trial that she had been involved in a sexual relationship with Belcher. (TR. 489-90, 499.) See, e.g., Saunders v. State, 249 So. 3d 1153, 1160 (Ala. Crim. App. 2016)
Moreover, the allegation that counsel did not present all of the codefendants’ motives to testify against Belcher is insufficiently pleaded because Belcher does not state how counsel should have known about the other charges or why they would have made a difference. There was ample evidence and arguments presented at trial about the highly favorable plea agreements that Chylli Bruce and Steven George made with the State in exchange for their testimony against Belcher. (TR. 414, 464, 495-96, 499, 584-85, 587, 1030-33, 1182.) Furthermore, Belcher pleaded no facts to show that the dismissal of additional, lesser charges would have indicated more bias and motivation than the plea agreements they made to receive lesser sentences for Samantha‘s capital murder.
Finally, Belcher pleaded no facts to explain how, if the jury had known this additional information, there is a reasonable probability that Belcher would not have been convicted or sentenced to death. (C. 720.) The circuit court thus properly summarily dismissed this claim.
Belcher also contends on appeal, as in his petition, that “trial counsel failed to investigate and present readily available evidence to rebut” the State‘s portrayal of him as the “ringleader” who provided everyone drugs. (Belcher‘s brief, pp. 74-75.) Belcher contends that he “had not manufactured methamphetamine for many months prior to this offense” and that counsel could have elicited testimony on cross-examination of Bruce and law-enforcement officers showing that Belcher had not been manufacturing drugs at the time and did not manufacture the drugs used on the night of the offense. Belcher, however, did not plead any facts to show that Belcher told counsel this or explain how, even if true, his not manufacturing the drugs used that night would have resulted in his not being convicted or sentenced to death for Samantha‘s murder.
That Belcher did not “make” the drugs does not mean that he did not “supply” the drugs. In addition, the only mention of Belcher‘s manufacturing methamphetamine came from Belcher himself, who testified that his father “kept accusing [him] of making drugs in the woods,” and Belcher admitted that he had made methamphetamine in
Belcher‘s argument that his counsel failed to refute that he was the ringleader of this crime is also clearly without merit because it is refuted by the record. Counsel‘s theory was clearly that Steven George was the ringleader, and the best evidence of that was not that Steven George supplied the drugs, but that Steven George stole Samantha‘s car, removed a part and the gasoline, and set it on fire, which precipitated Samantha‘s beating, kidnapping, and murder. Trial counsel emphasized during the guilt phase of Belcher‘s trial that Steven George was the only person who stood to benefit from Samantha‘s murder. (TR. 1026-27, 1033.) He again emphasized Steven George‘s role as the “ringleader” in the penalty-phase closing arguments, stating: “Mike‘s not the person who started this chain of events that ended up in Samantha‘s death. Steven George is.” (TR. 1181.) Contrary to Belcher‘s contentions, as the circuit court found, “that Steven George stayed at [Belcher‘s] home and used
For all these reasons, Belcher‘s contentions are both insufficiently pleaded and meritless.
3. Failure to Impeach the Credibility of Bruce and Steven George
Belcher further contends, as he did in his petition, that trial counsel should have impeached Bruce and Steven George with prior inconsistent statements. Belcher contends that Steven George made inconsistent statements, telling law-enforcement officers that he had no idea Samantha‘s body was in the trunk until they ran out of gas, that he stole her car on Belcher‘s orders, that he helped only because “Belcher threatened to kill him,” that he put Samantha‘s catalytic converter in Belcher‘s dryer but at Belcher‘s trial did not state where he put it, that he provided conflicting accounts of who did what to Samantha, and that he did not trust Belcher and they had no relationship other than Steven George‘s having bought methamphetamine from Belcher. (C. 80-85.) Belcher then baldly pleaded that, had the jury heard “the many times that Steven George had lied,” there is a reasonable probability that the jury would not have credited his testimony. (C. 86.) Belcher further
As the circuit court found, Steven George‘s prior inconsistent statements were not favorable to Belcher. At trial, Steven George testified that he alone came up with the idea of stealing and burning Samantha‘s car and that he and Marcus George did this with no direction from Belcher. In an earlier statement, Steven George had said that this was all done at Belcher‘s direction. Likewise, Belcher complains that not enough was done to prevent the jury from thinking that he was the ringleader and a drug manufacturer; yet, in this claim, Belcher contends that counsel was ineffective for failing to introduce a prior statement that Steven George only knew Belcher because Belcher sold him methamphetamine. Steven George testified at Belcher‘s trial that he helped “hog tie” Samantha‘s wrists and feet and, then, behind her back, tied her wrists and feet together17 and, further, that he then helped
As for Steven George‘s plea agreement, “the jury was well informed about [it] and the possible impact that it had on his credibility.” (C. 742 (citing R. 1032 (counsel‘s closing emphasized that death was taken off the table in exchange for George‘s plea)).) As the circuit court found, “Belcher fails to plead any facts explaining how evidence of the dismissal of [other, less significant] charges would have changed the result of his trial, when arguments that the witness avoided the death penalty by testifying, did not.” (C. 742.) This is also true because the dismissal of any lesser charges was of little benefit to Steven George because it would not result in him serving a shorter time in prison when his plea agreement to the capital-murder charge required him to serve the rest of his life in prison. This claim regarding Steven George was properly summarily dismissed.
The circuit court also properly summarily dismissed Belcher‘s claim that counsel was ineffective for failing to impeach Chylli Bruce based on her allegedly inconsistent statements. Belcher contends that Bruce
The circuit court noted that Bruce was asked at trial about her prior statements and that she testified that she was not truthful before her plea agreement with the State. The circuit court found that “Belcher‘s failure to explain how trial counsel could have impeached Bruce with statements that she had already disavowed is fatal to his claim.” (C. 745.) The circuit court further found that “it is clear on the face of the record that no material inconsistencies existed” and, thus, that “trial counsel cannot have been ineffective for failing to exploit them.” (C. 747.) We agree and further note that Belcher testified at his trial and had an opportunity to refute any inaccurate statements, but he did not. Indeed, Belcher‘s testimony was substantially similar to the testimony of Steven George and Bruce. Belcher acknowledged that his codefendants were going to kill Samantha and simply told them: “Don‘t kill her here [at his shop].” (TR. 965.) According to Belcher, Steven George tied Samantha up on his own, but Belcher admitted telling George, “[w]e‘ve got to get out of this” and that he “pick[ed] her up with Steven George.” (TR. 966.) Belcher also admitted putting Samantha in his car and taking her to his
Considering the relative insignificance of any inconsistencies in Bruce‘s testimony, as the circuit court found, “trial counsel cannot have been ineffective for failing to exploit them.” (C. 747.) This is especially true because of the extremely damning testimony Belcher himself provided at trial. And, Belcher has never pleaded that, but for trial counsel‘s deficient performance, he would not have testified. Moreover, Belcher pleads no facts that would suggest a reasonable probability that, but for the inconsistencies in Steven George‘s and Bruce‘s testimony, the outcome of his trial would have been different.
As for Belcher‘s contention that trial counsel did not present Bruce‘s “full” motive to reach a plea agreement with the State and testify against Belcher, the circuit court stated:
“Belcher fails to plead what, if any documentation of these crimes exists, how the alleged charges were disposed of, whether they were indeed linked to her plea deal in any way, or what her answers would have been had she been asked
‘about her motive to provide favorable testimony.’ … Thus, Belcher fails to plead facts that would show how trial counsel could have in fact impeached Bruce, or how it would have changed the result of the trial.”
(C. 747.)
For all these reasons, this claim was both insufficiently pleaded and meritless.
B. DNA Evidence
Belcher next contends on appeal, as he did in his petition, that trial counsel failed to adequately challenge the State‘s evidence that his DNA was found on the silver Gerber knife that belonged to Steven George. According to Belcher, with more vigorous challenges, there is a reasonable probability that the jury would have discounted the evidence that his DNA was on the Gerber knife.
First, according to Belcher, trial counsel should have presented alternative explanations for why his DNA was on the knife handle, challenged the degree of probability that the DNA was Belcher‘s, and more vigorously challenged the presumptive evidence of blood on the knife. Belcher contends that an expert could have testified that it is “impossible” to know how a person‘s DNA came to be on a particular item and then speculates that, because the deputy who collected the item also
Second, Belcher contends that counsel failed to present evidence or thoroughly cross-examine the State‘s expert to show that the DNA testing was prone to bias because the test was not blind but was conducted in reference to known DNA samples from “suspects,” which, he says, “can yield a high rate of false inclusions” and can influence subjective judgments made during analysis. (C. 99-100.)
Third, Belcher contends that counsel should have more vigorously challenged the “presumptive presence of blood” and introduced “alternative explanations” that, instead of being the murder weapon, the knife could have been used to cut off Samantha‘s fingernails and/or that the knife could have animal blood on it because Steven George “used to work in deer processing.” (C. 103.) According to Belcher, “trial counsel failed to challenge the complete lack of evidence supporting the State‘s theory that [Samantha] was killed by the Gerber pocket knife.”
These contentions were insufficiently pleaded and without merit. As the circuit court noted, “the defense‘s theory was clearly that Belcher‘s
“We have the Gerber knife that belonged to Steven George that was found on the side of the road by Steven George, by Chylli Bruce. Right there together. Steven George‘s knife by Steven George. The knife was presumptively positive for blood, but they can‘t say whether or not it was Samantha Payne‘s blood. Ladies and gentlemen of the jury, I submit to you, if that knife was stuck in a person, then there would be that person‘s DNA on that knife.
“But they can‘t tell you that Samantha Payne‘s DNA was on that knife ‘cause it wasn‘t stuck in Samantha Payne. There were no stab wounds on Samantha Payne‘s body. The medical examiner testified he saw no indication that she had been stabbed. There were no marks on any bones that indicated that she had been stabbed, no marks on her body.
“So the State of Alabama presented to you this Gerber knife with Mr. Belcher‘s DNA on it. Maybe it‘s the murder weapon; maybe it‘s not. Maybe it‘s the knife. I don‘t know. The knife doesn‘t tell us anything about whether or not it was used to kill Samantha Payne, and it surely doesn‘t tell us that Michael Belcher intended for Samantha Payne to die.
“The State of Alabama has also brought you the jeans on South Sandy Road. The jeans that were, again, by Steven George and Chylli Bruce. That‘s where they were found. Not out in the woods, but up there with them where they were. And the knife went to the Hale County Jail with Steven George because all of these things were with Steven George. We have Steven George‘s clothes, his shirt with Samantha Payne‘s DNA on it, which was on Steven George, which went with Steven George to the Hale County Jail ‘cause it was his.
“And then, of course, there was the cellphone with Samantha Payne‘s blood on it, her DNA, that was also with Steven George. So all the things that they‘ve shown you to show you that Michael Belcher intended for Samantha Payne to die, actually Steven George had them. I think that that‘s important. “And then we have Samantha Payne‘s decomposed body. Her body tells us nothing about how she died, nothing whatsoever. The medical examiner couldn‘t determine it. Don‘t know if she was stabbed. ... Sure don‘t know who stabbed her, if she was stabbed.”
(TR. 1028-29.)
Based on the trial record, Belcher‘s counsel‘s performance was within the wide range of reasonable professional assistance. Belcher‘s trial counsel clearly relied on the State‘s DNA evidence to bolster their theory that Steven George killed Samantha, which was a particularly reasonable theory because there was far more DNA evidence that implicated Steven George than implicated Belcher. Samantha‘s DNA was found only on items that belonged to Steven George, and, although Steven George‘s knife had Belcher‘s DNA on it, the knife did not have Samantha‘s DNA on it; nor was it even determined that Samantha‘s death was caused by stabbing. Rather, Belcher‘s counsel elicited on cross-examination that, because Samantha‘s DNA was not found on the knife and because her cause of death had not been determined, it was
We further note that some of the information that was elicited could have been regarded as speculative based upon defense counsel‘s cross-examination. For example, Belcher‘s counsel got the State‘s DNA expert to admit that she did not know “how DNA is deposited on items because
Finally, Belcher failed to plead, particularly based on the trial record and the circuit-court judge‘s firsthand observations of the trial (as he was also the trial-court judge), how, but for these alleged errors, there
For these reasons, this claim was both insufficiently pleaded and meritless and was properly summarily dismissed. Moreover, Belcher‘s reliance on Hinton v. Alabama, 571 U.S. 263 (2014), to argue otherwise is misplaced. In Hinton, defense counsel was ineffective for failing to hire an expert because he had a mistaken belief that funds for an expert were not available and because “the core of the prosecution‘s case was the state experts’ conclusion that the six bullets had been fired from the Hinton revolver, [which] effectively required a competent expert on the defense side.” Id. at 273 (emphasis added). Here, however, the DNA evidence was not the “core” of the State‘s case. If anything, the DNA evidence presented at Belcher‘s trial was more supportive of Belcher‘s theory that Steven George murdered Samantha than the State‘s theory that Belcher was responsible for Samantha‘s death. Thus, Hinton does not support Belcher‘s argument that his trial counsel were ineffective.
C. Cross-examination of Law-Enforcement Witnesses
Third, Belcher‘s entire appellate “argument” regarding counsel‘s cross-examination of law-enforcement witnesses is:
“Investigators Wilkins and Bryant, who conducted the State‘s investigation, admitted at trial that, after questioning Steven George, they never considered alternative theories of events other than those presented by Steven George. (TR. 717-18, 738-30.) As pled in the petition, counsel failed to cross-examine investigators on the ways in which they unreasonably limited their investigation by failing to: search the residences of Mr. Belcher‘s co-defendants and the abandoned trailer on Haysop Church Road where co-defendants testified the victim was brought (C. 104-05); recover numerous pieces of evidence, including Marcus George‘s vehicle, Chylli Bruce‘s knife and clothes, and a burn barrel where Ms. Payne‘s fingernails, jewelry, and clothes were allegedly discarded (C. 104-07); collect DNA samples from co-defendants Marcus George and Alyssa Watson (C. 107); submit numerous items for forensic analysis, including items used to tie Ms. Payne to the tree (C. 107-08); and photograph key pieces of evidence, including Ms. Payne‘s car while it was still located at the Harrisburg Bridge. (C. 107-08). Counsel also failed to question investigators about inconsistencies between the locations where evidence was found and the co-defendants’ testimony. (C. 105-06); see United States v. Cronic, 466 U.S. 648, 656 (1984); Smith [v. Wainwright], 777 F.2d [609,] 617 [(11th Cir. 1985)].
“Had counsel cross examined law enforcement witnesses about the numerous gaps in the State‘s investigation, it would have introduced reasonable doubt about the State‘s case, and there is a reasonable probability that Mr. Belcher would not have been convicted of murder or sentenced to death. See Strickland [v. Washington], 466 U.S. [668,] 694 [(1984)]. Because Mr. Belcher‘s allegations regarding the gaps in the State‘s investigation are sufficiently pled and facially meritorious, he should have been entitled to an evidentiary hearing. See [Ex parte] Hodges, 147 So. 3d [973,] 976 [(Ala. 2011)]; [Ex parte] Land, 775 So. 2d [847,] 852 (Ala. 2000).”
(Belcher‘s brief, pp. 86-88.)
Moreover, even if Belcher had not waived this argument, the circuit court properly dismissed this claim as being insufficiently pleaded because Belcher did not plead what questions should have been asked, what evidence could have been discovered, and how revealing these deficiencies and alleged inconsistencies in the investigation would have changed the outcome of his trial, particularly considering his own testimony at trial, the overwhelming evidence against him (including the hair and blood inside his vehicle‘s interior and trunk), and the fact that he has never argued or pleaded that he would not have testified but for counsel‘s deficiencies. See, e.g., A.G. v. State, 989 So. 2d 1167, 1173 (Ala. Crim. App. 2007) (holding that ineffective-assistance claims were insufficiently pleaded when petitioner did not plead what questions should have been asked and “how those questions” would have resulted
D. Voluntary-Intoxication Defense
Belcher further contends, as he did in his petition, that his trial counsel were ineffective because they did not “present a voluntary intoxication defense, which could have negated the element of intent necessary for a conviction of capital murder, reducing the offense to manslaughter,” and, more specifically, for not obtaining and presenting testimony “from an expert in psychopharmacology.” (Belcher‘s brief, p. 88.) The circuit court properly summarily dismissed this claim as being both insufficiently pleaded and meritless. (C. 773.)
In dismissing this claim, the circuit court correctly noted:
” ‘[E]vidence that the defendant ingested alcohol or drugs, standing alone,’ will not support an intoxication
defense. Pilley v. State, 930 So. 2d 550, 562 (Ala. Crim. App. 2005). Rather, ‘there must be evidence that the ingestion caused a disturbance of the person‘s mental or physical capacities and that that mental or physical disturbance existed at the time the offense was committed.’ Lee v. State, 898 So. 2d 790, 838 (Ala. Crim. App. 2001). See also Spencer v. State, 58 So. 3d 215, 231-32 (Ala. Crim. App. 2008); Harris v. State, 2 So. 3d 880, 910-12 (Ala. Crim. App. 2007). ‘[T]o negate the specific intent required for a murder conviction, the degree of the accused‘s intoxication must amount to insanity.’ Whitehead v. State, 777 So. 2d 781, 783 [(Ala. Crim. App. 1999)].”
(C. 773-74.)
Considering the legal requirement that the degree of the accused‘s intoxication must amount to insanity to support an intoxication defense and manslaughter instruction, the circuit court properly recognized that Belcher‘s claim was insufficiently pleaded. In addition, it is notable that, although Belcher pleads that “[e]ffective counsel would have elicited testimony from [him] as to the extent of his drug use and the impact of methamphetamine on his mental state at the time of the crime, including his level of intoxication, and the psychoactive symptoms that he was experiencing” (C. 109-10), Belcher‘s postconviction counsel also
“fail[e]d to plead the amount of [methamphetamine] he took and its impact on his mental state at the time of the crime, as well as how his [methamphetamine] use would have justified an intoxication instruction. The bare allegation that Belcher ingested an unspecified amount of [methamphetamine]
during an unspecified period of time before the murder is not sufficient to establish that he was intoxicated to the point of insanity and unable to form intent to kill at the time of the murder.”
(C. 774.) We agree with the circuit court that this claim was insufficiently pleaded and properly summarily dismissed. See, e.g., Mashburn, 148 So. 3d at 1126 (holding that Mashburn‘s bare allegations were not sufficient to establish that he was intoxicated to the point that he was unable to form intent because he “failed to allege how much methamphetamine he had taken, how much or what prescription drugs he had taken, or exactly when he had taken the methamphetamines and prescription drugs“), and Connally v. State, 33 So. 3d 618, 623 (Ala. Crim. App. 2007) (holding that Connally‘s claim that his intoxication was a viable defense to murder was insufficiently pleaded because he “failed to allege how much he had to drink the night of the crime, how long before the crime he had been drinking, or any other facts indicating that his alleged intoxication amounted to insanity“).
As the circuit court held, Belcher‘s contention -- that Dr. Susan Skolly-Danziger could have testified “that it is likely that [he] was continuing to experience the psychoactive effects of methamphetamine on his functioning for many hours after he stopped using” -- is also
We further note that Belcher‘s contentions also appear to be refuted by the evidence presented at trial, particularly his own testimony. (See, e.g., TR. 955 (Belcher said that he was high but working on installing “a clutch basket” in a motorcycle), TR. 956-57 (Belcher was busy working other than stopping to get high), TR. 959 (Belcher “bl[e]w everybody off to go back to finish working on this motorcycle” because “[t]he customer was really rushing [him] to get it out“), TR. 969 (Belcher was capable of driving), TR. 970 (Belcher made the decision to get Samantha out of his car and leave), TR. 970 (Belcher was concerned about his car being in a
In sum, this claim was insufficiently pleaded and, considering the evidence presented at trial, meritless.
E. Failure to Object
Belcher‘s final guilt-phase ineffective-assistance-of-counsel claim begins with an argument that the State improperly used his “mug shot” during voir dire and ends with a general contention that trial counsel was ineffective for failing to object to “numerous other violations” of his constitutional rights at trial. As for the “numerous other violations,”
As for Belcher‘s one argument that “[c]ounsel failed to protect [him] from the State‘s prejudicial use of his mugshot during voir dire” (Belcher‘s brief, p. 91), this argument was dismissed by the circuit court because it was insufficiently pleaded. We agree with the circuit court.
Belcher recognizes that he raised the claim that the mug shot was erroneously used during voir dire on direct appeal. He argues, however, that this Court rejected this claim of error merely because “the record does not include a copy of the ‘billboard’ that was displayed to the jury.” Belcher, 341 So. 3d at 255. However, this Court further noted that “[t]here is nothing in the record that suggests that the photograph of Belcher contained any criminal history.” Id. at 256. “Nor is there any indication that the photograph related to a case separate from the one for which Belcher was on trial.” Id. Interestingly, although we could not
F. Counsel‘s Deficient Performance Was Prejudicial
Belcher also restates the claim in his petition that,
“[i]f counsel had presented a coherent and consistent defense throughout the trial, including that the co-defendant testimony was not credible, the State‘s investigation and forensic evidence was unreliable, and that Steven George and Chylli Bruce killed Samantha Payne, the jury would have assessed the relative culpability of Mr. Belcher and his co-defendants differently (C. 118-22), and there is a reasonable probability that [he] would not have been convicted of capital murder or sentenced to death.”
(Belcher‘s brief, p. 93.) Belcher further restates his contention that “[t]hese errors, individual and collectively denied [him] his rights to effective assistance of counsel and due process.” (Belcher‘s brief, p. 93.) However, Belcher makes no substantive argument addressing these contentions or the circuit court‘s summary dismissal of this claim. Thus, this claim is waived because it does not satisfy the requirements of
V. Discovery Request
Belcher also contends that the circuit court erred by denying his request for “discovery and access to neuroimaging,” which he filed before filing his petition. According to Belcher, he was entitled to this prefiling discovery “because, under
In considering this discovery claim, we recognize that ” ’ ” [w]e will reverse a [circuit] court‘s denial of a postconviction discovery request only for an abuse of discretion.’ ” ” Jackson v. State, 910 So. 2d 797, 802 (Ala. Crim. App. 2005) (quoting Ex parte Mack, 894 So. 2d 764, 768 (Ala. Crim. App. 2003), quoting in turn People v. Johnson, 205 Ill. 2d 381, 793 N.E. 2d 591, 275 Ill. Dec. 820, (2002)). Moreover, ” ’ ” [a] trial court does not abuse its discretion in denying a discovery request which ranges beyond
Belcher contends that in his initial prefiling discovery motions, as well as in his renewed discovery motions after he filed his petition, “he detailed the records and testing that he needed in order to support specific anticipated claims.” (Belcher‘s brief, p. 93.) Belcher does not, however, explain in his brief how his motions established “good cause” for discovery. Belcher also fails to explain how and why the “good cause” standard “must yield to the statutory structure of the FJA,” other than stating that “pre-filing discovery would facilitate the purpose of the FJA to require earlier litigation and expedite review.” (Belcher‘s brief, p. 94.) Accordingly, Belcher‘s claim is insufficient pursuant to
Regardless, the circuit court did not abuse its discretion by denying Belcher‘s discovery request because Belcher did not demonstrate “good cause” for discovery. A “good cause” determination necessarily requires
VI. The Fair Justice Act
Belcher‘s final argument is that application of the FJA violated his “rights to due process, access to courts, and effective assistance of postconviction counsel because the time provided is simply inadequate to fully investigate all claims for postconviction relief.” (Belcher‘s brief, p. 96.) Belcher further argues that “[t]he FJA‘s restrictions also violate
We agree with the circuit court that this claim was insufficiently pleaded under
As the circuit court found, Belcher failed to plead any specific facts to show that his constitutional rights were violated by the application of the FJA to his petition. This is a particularly glaring insufficiency considering that the Alabama Supreme Court‘s opinion in Ex parte Marshall, 323 So. 3d 1188, 1199 (Ala. 2020), rejected nearly identical contentions by Belcher and other petitioners who had been sentenced to
Belcher alleged in his petition that “the COVID-19 pandemic has precluded [his] ability to adequately investigate and prepare his Rule 32 petition” because the rule of the Alabama Department of Corrections that required “suspension of in-person visitation ... substantially impeded counsel‘s ability to adequately communicate with [Belcher] and gather information” and to “conduct any expert evaluations of Belcher” and that many “offices from which records need to be obtained are closed or operating on a limited staff and thus unable to fulfill record requests in a timely fashion. In addition, critical witnesses live at a substantial distance from Alabama or are at high risk for severe COVID infection,
In sum, Belcher pleaded no facts to show that the FJA deprived him of effective assistance of counsel, violated his right to due process, violated his right to equal protection, or violated separation-of-powers principles.
Conclusion
For these reasons, Belcher is due no relief on his postconviction claims, and the judgment of the circuit court is affirmed.
Windom, P.J., concurs in part and concurs in the result, with opinion, which Minor, J., joins. Kellum, J., concurs in the result. Anderson, J., recuses himself.
I concur with the main opinion, except for Parts II and VI. As to those parts of the main opinion, I concur only in the result.
Minor, J., concurs.