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Clemons v. State
Citations: 55 So. 3d 314; 2005 Ala. Crim. App. LEXIS 128; 2003 WL 22047260Docket: CR-01-1355
Court: Court of Criminal Appeals of Alabama; June 24, 2005; Alabama; State Appellate Court
Eugene Milton Clemons II was convicted of capital robbery-murder on September 25, 1994, and sentenced to death following a jury's unanimous recommendation. His conviction and sentence were affirmed by both the Alabama Court of Criminal Appeals and the Alabama Supreme Court, with the U.S. Supreme Court denying his certiorari petition. Clemons subsequently filed a Rule 32 petition challenging his conviction and sentence, amending it multiple times. The State moved to dismiss some claims, and the circuit court dismissed several while denying others after an evidentiary hearing. While the appeal was pending, the U.S. Supreme Court decided Atkins v. Virginia, which ruled that executing mentally retarded individuals is unconstitutional under the Eighth Amendment. Clemons argued ineffective assistance of counsel for failing to present mitigating evidence regarding his mental capacity and claimed, for the first time, that he is mentally retarded, asserting that his death sentence is unauthorized based on Atkins. The court needed to address whether these claims were properly before it, referencing the retroactivity standard established in Teague v. Lane. New constitutional rules of criminal procedure do not apply retroactively to cases that became final before the rules were announced unless they fall within two exceptions. The first exception applies when a new rule places certain types of conduct beyond the authority of criminal law to prohibit. The second exception involves "watershed" rules of criminal procedure essential for ensuring ordered liberty, where failing to apply them would significantly reduce the likelihood of accurate convictions. The Supreme Court, in Penry, determined that a potential new rule prohibiting the execution of mentally retarded individuals would not be based on existing precedent at the time of Penry's conviction and would create new obligations for states and the federal government. Under the Teague decision, a new rule is not retroactively applicable unless it meets one of the two exceptions. Justice Harlan's perspective highlighted that the first exception should encompass not only rules that protect individual conduct but also those that prevent certain categories of defendants from receiving specific punishments due to their status or the nature of their offenses. Thus, the first exception in Teague is understood to cover rules that prohibit the death penalty for specific classes of defendants, aligning with fundamental constitutional protections. The Eighth Amendment prohibits the execution of mentally retarded individuals, such as Penry, regardless of procedural aspects, and this principle falls under the first exception to nonretroactivity, applying retroactively to collateral review cases. This conclusion is supported by other states' rulings post-Atkins, including cases in Mississippi, Missouri, and Louisiana. The appellant's claims of mental retardation and ineffective assistance of counsel are complicated by conflicting IQ evidence. Testimony from trial public defender indicates an IQ of 58 from the appellant's school years, while a clinical psychologist later assessed an IQ of 51, but questioned its accuracy. Another psychologist estimated the appellant's intelligence as borderline or mild retardation, yet some evidence suggested an IQ over 70. The circuit court excluded critical testimony from Dr. Charles Golden, a neuropsychologist, who was prepared to discuss the appellant's low IQ, mental deficits, and brain damage history. The state's motion to exclude was based on the claim that Dr. Golden could not testify about the cause of brain damage, although the appellant contended that the testimony would focus solely on the existence of brain damage, not its cause. The appellant had made an extensive offer of proof regarding Dr. Golden's potential testimony, which included historical IQ scores and recommendations for special education due to mental retardation. The court found the exclusion of Dr. Golden's testimony to be erroneous, leading to insufficient evidence to determine the appellant's mental retardation status, contrary to the Alabama Supreme Court's prior conclusion in Ex parte Perkins. The circuit court must first determine if the appellant, Eugene Milton Clemons II, is mentally retarded before evaluating his arguments. Upon remand, both parties are to present evidence regarding this issue, adhering to guidelines set in Ex parte Smith, Ex parte Perkins, and Stallworth v. State. The court is instructed to conduct an evidentiary hearing and provide specific, written findings on three main issues: the appellant’s claim of mental retardation, the alleged ineffective assistance of trial attorneys for failing to present evidence about his mental capacity, and the legality of his death sentence. The circuit court must ensure a timely return of findings and a transcript within 98 days. Following this process, the appellant raised additional arguments related to the remand proceedings, which will be addressed. The plain error rule does not apply to Rule 32 proceedings, and procedural bars under Rule 32 are equally applicable in death penalty cases. The appellant asserts that his mental retardation renders his death sentence unauthorized, referencing the Supreme Court's decision in Atkins v. Virginia, which questions the justification for executing mentally retarded individuals under Eighth Amendment standards. Punishment for a mentally retarded offender is deemed excessive under the Constitution, which restricts the state's power to impose the death penalty in such cases. The Alabama Supreme Court in Ex parte Perkins clarified that a defendant must exhibit significantly subaverage intellectual functioning (an IQ of 70 or below) and substantial deficits in adaptive behavior, both of which must have appeared before reaching age 18, to qualify as mentally retarded. In the case at hand, extensive and conflicting evidence was presented regarding the appellant Clemons's mental capacity. The circuit court found that Clemons did not meet the criteria for mental retardation based on intelligence and adaptive functioning. Clemons's intelligence test scores varied widely, from a low of 51 to a high of 84, likely due to his tendency to malinger during tests, as noted by multiple mental health professionals. His initial test at age six and a half yielded a score of 77, categorizing him as borderline intellectually. Despite this, school records labeled him as "educable mentally retarded," indicating he was two years behind academically and did not graduate high school. At age 19, he scored 84 on the BETA-II test, his highest score. Following murder charges, he underwent additional testing, including the WAIS-R, where he scored 51. The administering psychologist cast doubt on the validity of this score, noting that individuals in this IQ range typically require structured living and may struggle with basic self-care. Clemons underwent several psychological evaluations to assess his intellectual functioning and potential malingering. Initial testing indicated an IQ of 51, which was deemed inconsistent given a previous score of 84 on the BETA-II test. A psychologist noted that Clemons exhibited unusual behavior, such as writing with his left hand despite being right-handed, suggesting a lack of genuine effort. The psychologist concluded that Clemons was malingering, placing him in the borderline range of intellectual functioning. Prior to his federal trial, Dr. William Grant, a psychiatrist, evaluated Clemons but did not perform intelligence tests. He also concluded Clemons was malingering, noting that Clemons laughed uncontrollably until informed that faking would be unwise. Dr. Grant characterized Clemons as antisocial. Similarly, Dr. Rivenbark, who evaluated Clemons in 1992 and 1994, reached the same conclusion without conducting tests. In 2001, before the first Rule 32 evidentiary hearing, Dr. Kimberly Ackerson performed a psychological evaluation, administering the Wechsler Adult Intelligence Scale-Revised (WAIS-R), yielding an IQ of 73 and noting Clemons appeared motivated. This score classified him as borderline. Dr. Ackerson testified at the 2001 hearing but was absent from the later hearing in June 2004. Dr. Glen King, hired by the Attorney General's Office, evaluated Clemons around the same time, administering the Wechsler Adult Intelligence Scale-Third Edition (WAIS-III) and obtaining an IQ of 77. He noted a significant discrepancy between verbal and performance scores, attributing it to Clemons' lack of effort on specific tasks. Dr. King also assessed Clemons' academic achievement through the Wide Range Achievement Test-Third Edition, indicating a general functioning level classified as borderline intellectual ability. Clemons achieved a score of 98 in reading and 96 in spelling, indicating high school-level proficiency. Following a remand from the Court of Criminal Appeals to assess Clemons' mental capacity, Dr. King conducted testing in February 2004 using the Halsted-Reitan test battery, including the WAIS. Dr. King observed a lack of motivation from Clemons during testing, who even claimed to experience numbness in his right side, a condition not supported by his medical history. Clemons received a full-scale IQ score of 67 on the WAIS, which Dr. King adjusted downward by seven points to align with WAIS-III scores, resulting in a score of 60. Notably, there was a significant 17-point decline from Clemons' previous WAIS-III score of 77, which Dr. King attributed to possible malingering. Dr. King's assessment categorized Clemons as functioning within the borderline range of intellectual ability. Dr. Golden, engaged by Clemons' current counsel, administered the Stanford-Binet Intelligence Scale-Fourth Edition and reported a full-scale IQ score of 58, later adjusted upward to 61 due to differences in scoring systems. Dr. Golden proposed additional calculations to average Clemons' scores across different reasoning areas, resulting in an estimated IQ of 66, which he deemed more comparable to WAIS results. However, he provided no clear rationale for these adjustments. Dr. King refuted the necessity of scaling IQ scores from the Stanford-Binet, affirming that IQ scores should be derived directly from the test norms. Clemons failed to provide evidence supporting Dr. Golden's claim for upward scaling of scores from the Stanford-Binet Intelligence Test. His IQ scores varied significantly, ranging from a low of 51 on the WAIS-R in 1992 to a high of 84 on the BETA-II in 1991. Consistently, when Clemons applied effort, his scores fell within the 70-80 range, indicating borderline intellectual functioning, thus demonstrating he is not mentally retarded. Despite scoring below 70 three times, including a 51 score which was deemed inconsistent by the test administrator, a psychologist at Butner noted Clemons was functioning in the borderline range. Clemons scored 58 on the Stanford-Binet by Dr. Golden, who attempted to justify the score as equivalent to a 66, but Dr. King refuted this without any counter from Clemons. Dr. King also administered the WAIS and scaled Clemons' score from 67 to 60 for comparability with the WAIS-III, which Clemons did not contest. The Court concluded that Clemons did not meet the criteria for mental retardation due to insufficient evidence of significantly subaverage general intellectual functioning. Additionally, the Court addressed the adaptive functioning element relevant to mental retardation, referencing state appellate courts' considerations regarding exemption from the death penalty. Clemons' case evaluation includes several factors that suggest he is not mentally retarded: his employment history, ability to form interpersonal relationships, involvement in criminal activities, and post-crime behavior. Although he was incarcerated at 19, Clemons managed to hold a few unskilled jobs, including a delivery driver position at Domino's pizza, which required a valid driver’s license and basic math skills for handling cash. Despite some challenges, such as occasionally returning more pizzas than he delivered and being short on cash at the end of shifts, his overall job performance was deemed satisfactory, though he frequently ceased working after one to two months. The psychologist's assessment indicates that Clemons' limited job history may stem from a lack of personal motivation rather than cognitive deficits. He has lived with relatives and engaged in illegal activities, substance abuse, and promiscuity instead of seeking stable employment. Additionally, Clemons has demonstrated the ability to form interpersonal relationships, having fathered at least two children with various partners, although he could not recall their names. His post-arrest behavior further illustrates his craftiness, as he attempted to minimize his culpability in a statement to the FBI, portraying himself as acting in self-defense during the crime. Overall, the court finds that Clemons' behavior and choices indicate he possesses sufficient adaptive functioning to negate claims of mental retardation. Clemons expressed to his companions that if they were going to steal cars, he wanted to be taken home. Upon spotting a black Camaro at a convenience store, Reid and Smith encouraged him to take it. Despite initial hesitation, taunting led Clemons to approach the vehicle, where he was handed a gun. He encountered Agent Althouse inside the Camaro, who, after dropping his phone, appeared to draw a weapon while smirking. In response, Clemons fired multiple rounds, suggesting he acted in self-defense while portraying himself as a follower. However, evidence from the trial indicated that Clemons had premeditated the crime, having obtained the gun a week prior and allegedly carjacked three vehicles at gunpoint independently. Witness testimonies illustrated his deliberate intent and ability to engage in criminal activity without assistance, undermining claims of significant limitations in adaptive functioning. Additionally, Clemons's ability to utilize public transportation to flee to Cleveland after the incident further demonstrated his adaptive skills. Psychologists who assessed him concluded that he did not exhibit significant limitations in adaptive functioning, supported by his past employment, educational achievements, and literacy skills. Dr. Grant's evaluation of Clemons, conducted prior to the federal trial, concluded that Clemons is a hardened criminal with adaptive skills that contradict claims of mental retardation. Evidence from Jefferson County Jail shows Clemons is housed among violent inmates, indicating his capacity to function in a challenging environment. Individuals with low IQs typically become victims in such settings, yet Clemons' survival suggests he does not have significant limitations in adaptive functioning. The legal standard for proving mental retardation requires both significantly subaverage intellectual functioning and significant deficits in adaptive behavior to be established before the age of 18. Clemons scored 77 on an intelligence test at age six and a half, which is above the Alabama Supreme Court's threshold of 70, indicating he does not meet the criteria for significantly subaverage intellectual functioning. Additionally, there was no evidence of significant deficits in adaptive functioning prior to age 18. Consequently, the Court determined Clemons is not mentally retarded, affirming that the death penalty is constitutional in his case. Clemons also claimed ineffective assistance of trial counsel. He was represented by different attorneys at trial and on appeal. Appellate counsel filed a motion for a new trial based on ineffective assistance claims. The Court cited procedural precedents concerning ineffective assistance claims, referencing the transition in Alabama law from Ex parte Jackson to Ex parte Ingram, which impacted how such claims could be raised on appeal. The Court ultimately upheld the findings of the circuit court regarding Clemons' mental status and the sufficiency of his legal representation. Trial counsel filed a motion for a new trial, which appellate counsel later amended under the Jackson procedure, raising 11 claims of ineffective assistance of trial counsel. A hearing was held, but the circuit court denied relief, noting that several claims had already been addressed on direct appeal. The court referenced the precedent in Payne v. State, indicating that claims of ineffective assistance of trial counsel must be raised in a motion for a new trial to preserve them for review, especially since Payne had different representation for trial and appeal. Consequently, the trial court deemed Payne's claims procedurally barred under Rule 32.2(a)(3) and (a)(5) of the Alabama Rules of Criminal Procedure, as they could have been raised earlier but were not. The appellant's further claims regarding trial counsel's performance were also ruled procedurally barred due to the same reasons. Additionally, the appellant challenged the circuit court's denial of a motion to correct an alleged clerical error concerning the filing date of his Rule 32 petition. The record indicated that a petition was initially submitted on December 27, 1999, but without a filing fee or request to proceed in forma pauperis. A proper filing occurred on January 28, 2000, which was when the petition was officially docketed. The circuit court denied the appellant's motion to correct the filing date, affirming the January 28, 2000 date as correct. A Rule 32 petition must be accompanied by the prescribed filing fee unless the petitioner is granted permission to proceed in forma pauperis. Upon receipt of the petition and fee, or an order allowing the fee waiver, the clerk must file the petition. According to Section 12-19-70, Ala. Code 1975, a consolidated civil filing fee, or docket fee, is collected from the plaintiff at the time of filing a complaint in circuit or district court. This fee may be waived initially if the court finds that paying it would cause substantial hardship, provided a verified statement of hardship is submitted and approved by the court. Case law supports that the docket fee must be collected at the time of filing for a postconviction petition unless a verified hardship statement is approved. Failure to pay the filing fee or secure approval of a hardship claim at the time of filing can result in a lack of jurisdiction for the circuit court to consider the petition. The Alabama Supreme Court has established that the mandatory nature of the fee, as indicated by the term "shall," is intended to discourage frivolous lawsuits and prevent clerks from acting as credit providers. While filing a complaint is important for commencing a suit and suspending statutes of limitations, it is not the sole factor; the prepayment of the filing fee is now considered essential in determining whether a suit has been properly commenced to avoid the expiration of the statute of limitations. Failure to pay the mandated filing fee at the time of submitting the complaint resulted in the withholding of service and prevented the clerk's office from initiating the case. This lack of payment indicated that the plaintiffs did not have a genuine intent to pursue the action, leading to the conclusion that the action was not officially "commenced," allowing the statute of limitations to continue running, thus barring the action. Similarly, for Rule 32 petitions, the circuit clerk is required to file a petition only after the fee is paid or a request to proceed in forma pauperis is granted. In this instance, a petition attempted to be filed on December 27, 1999, was neither accompanied by a filing fee nor a request to proceed in forma pauperis, rendering it improperly filed. The correct filing date was established as January 28, 2000, when both the petition and request to proceed in forma pauperis were presented, although the court did not approve the request until February 2, 2000. The appellant's acknowledgment that the filing date issue was inconsequential because the petition was filed timely led to the court's decision to deny the request to amend the filing date to December 27, 1999. Regarding ineffective assistance of appellate counsel, the appellant argued that his lawyer, William Mathews, failed to investigate claims pertinent to a motion for a new trial and appeal, particularly regarding his ability to waive Miranda rights and evidence of his difficult childhood and mental health issues. During the evidentiary hearing, Mathews admitted he did not investigate the appellant's background due to financial constraints and acknowledged that he should have sought funds for an expert on mental health. Despite acknowledging shortcomings, he also asserted that he prepared extensively for the motion hearing, reviewing over 2,000 pages of trial transcripts and formulating around 30 to 35 issues, which he narrowed down for presentation. Mathews had access to multiple expert opinions suggesting that the appellant was malingering regarding his mental health. In the trial's guilt phase, the appellant was removed for disruptive behavior and refused to return. During a hearing for a new trial, trial attorney Mickey Johnson recounted informing the appellant of his guilty verdict and his right to be present for sentencing. The appellant responded that Johnson and another attorney were not his lawyers and expressed disinterest in participating in the proceedings, ultimately refusing to return to court or call witnesses on his behalf. Johnson spoke with the appellant's family, informing them of the verdict and requesting their presence to testify, but they declined to participate, viewing the process as a mockery. The appellant's aunt was also uncooperative during her testimony. Mathews presented comprehensive arguments regarding various claims during the hearing, and his direct appeal included 16 issues. The circuit court concluded that Mathews provided effective counsel, stating that despite acknowledging shortcomings, he met the standard of representation. The court referenced case law affirming that trial counsel's perceived deficiencies do not automatically equate to ineffectiveness, highlighting that the Sixth Amendment does not obligate counsel to pursue every possible defense or witness. Mathews expressed doubt regarding his representation of the defendant, considering actions such as appointing co-counsel, requesting extraordinary expenses, conducting a thorough investigation, and hiring additional experts. The Court noted that Mathews lacked awareness of the standard for assessing an attorney's deficient performance. Requests for funds to fulfill Mathews' additional desires would have been denied, particularly since the defendant had already undergone multiple evaluations, including a comprehensive inpatient assessment, which negated the need for further psychological evaluations. The defendant was found to be malingering and had previously been convicted of the same crime, opting not to participate in his sentencing hearing. Mathews demonstrated a solid understanding of trial proceedings and effectively argued multiple points in the Motion for New Trial, including challenging the indictment on grounds of cruel and unusual punishment and double jeopardy, and alleging ineffective assistance of trial counsel for failing to present alibi witnesses and not excluding prior carjackings. He also contested the sufficiency of the evidence against the defendant and the handling of the defendant's removal from the courtroom. Additionally, Mathews filed a comprehensive appeal with the Alabama Court of Criminal Appeals, presenting a 47-page brief with 16 significant issues, which the Court viewed as indicative of competent representation. The Court concluded that any deficiencies in Mathews' handling of these matters were harmless, as nothing presented would have warranted a new trial. The Court dismissed claims regarding ineffective assistance of counsel, ruling that the evidence of other alleged misconduct was irrelevant and that the defendant failed to demonstrate an inability to waive his Miranda rights. Testimony from Dr. Rivenbark was discredited due to subsequent opinions that labeled the defendant as a malingerer, and prior federal proceedings indicated the defendant was competent to understand his rights, leading to the conclusion that the defendant could not show prejudice in the case. Trial counsel effectively assisted the Defendant in evaluating his ability to waive constitutional rights. The circuit court found that appellate counsel did not raise a claim regarding trial counsel's inadequate investigation into the Defendant's background and mental impairment. Trial counsel faced significant challenges due to the uncooperative and hostile demeanor of the Defendant's family, which impeded the investigation into mitigating evidence. The first lawyer, Bob Williams, withdrew from the case partly due to the family's interference, which included attempts to control the Defendant's decisions. Family members expressed conflicting agendas that disrupted the defense strategies. Subsequent counsel, Johnson, encountered similar hostility and distrust from the family, especially when discussing the penalty phase. Despite these obstacles, Johnson aimed to present a strategy highlighting the Defendant's troubled past, intending to use testimony from the Defendant's grandmother. Additionally, Johnson planned for the Defendant to express remorse and seek mercy. However, these plans were disrupted when the Defendant's uncle testified against him, leading to the Defendant's outburst about a prior conviction and his desire to dismiss his counsel, further complicating the trial proceedings. Clemons' family withdrew from attending the trial following his outburst, which escalated their hostility. An aunt, referred to as "Betty," impliedly threatened Mr. Bass and Johnson if they continued representing Clemons. After the conviction, Johnson attempted to contact Clemons' grandmother for testimony during the penalty phase, but Clemons' aunts claimed she could not testify due to work obligations. This family interference hindered trial counsel's ability to present mitigating evidence. Trial counsel had access to four psychological evaluations indicating Clemons malingered to feign mental illness. Johnson consulted with Dr. Grant, one of the evaluators, who indicated that his testimony would not be beneficial, and could lead to cross-examination revealing Clemons’ malingering. None of the psychologists recommended further evaluation by a neuropsychologist. Consequently, trial counsel opted to humanize Clemons by portraying his difficult upbringing and law-abiding life before his association with negative influences. They aimed to have Clemons apologize, admit guilt, and plead for mercy. However, due to their earlier courtroom outburst, Clemons and his family did not appear, preventing the presentation of this testimony. Attempts to obtain favorable mental health testimony were also thwarted, as the psychiatrist indicated it would not support Clemons’ case. The history of malingering would have been revealed if any mental health professional testified. Ultimately, Clemons failed to demonstrate a reasonable probability that the balance of aggravating and mitigating factors did not justify a death sentence. To establish a claim of ineffective assistance of counsel, a defendant must demonstrate two elements: (1) deficient performance by counsel and (2) resulting prejudice. The performance of counsel is assessed based on the circumstances at the time of their conduct, and a strong presumption exists that the conduct was reasonable. The burden is on the defendant to prove that counsel's actions were unreasonable. Courts must be cautious to avoid hindsight bias when evaluating counsel's performance, recognizing that strategic decisions made after thorough investigation are typically unchallengeable. A defendant does not need to satisfy both prongs of the Strickland test if they fail to prove one; often, claims can be resolved on the basis of insufficient prejudice alone. This approach emphasizes the need for a fair assessment of attorney performance, free from the distortions of hindsight. The document emphasizes the importance of the prejudice component in assessing claims of ineffective assistance of counsel, highlighting that the merit of [Thomas's] claim is significantly lacking. It clarifies that attorneys are not obligated to raise every possible constitutional issue but should exercise discretion in selecting claims with potential merit for trial and appeal. Experienced advocates are advised to focus on central issues due to limited time for oral arguments and page restrictions on briefs. The text notes that in cases where criminal behavior appears uncharacteristic of the defendant, mitigating evidence of character may carry more weight. It underscores that the purpose of ineffectiveness review is not to evaluate the quality of legal representation but to assess whether the trial's adversarial process functioned adequately. Acknowledging that representation can vary widely among attorneys, the text asserts that different circumstances may justify different strategies. The document concludes that the reasonableness of counsel's actions is heavily influenced by the information provided by the petitioner, making the latter’s statements and interactions with counsel crucial for evaluating ineffective assistance claims. Counsel's decision to forgo certain investigations may not be deemed unreasonable if they had reason to believe such efforts would be fruitless or detrimental, as established in Chandler v. United States. In capital murder cases, claims of ineffective assistance during the penalty phase focus on whether the sentencer would have deemed the balance of aggravating and mitigating circumstances insufficient to warrant a death sentence, as noted in Stevens v. Zant. The circuit court's findings support that Mathews adequately investigated and prepared for the motion for a new trial and the appeal, with no evidence suggesting Mathews' personal issues impacted his performance. The court also found that trial counsel's handling of the appellant's Miranda rights was reasonable and that appellate counsel had no grounds to challenge trial counsel's performance. Additionally, the appellant's actions and those of his family hindered the planned mitigation strategy, further validating appellate counsel's decisions. The appellant's claim regarding the State's noncompliance with Brady v. Maryland is addressed, specifically concerning undisclosed evidence about his uncle's criminal record and impeachment evidence about Leon Johnson. The circuit court mandated the disclosure of any agreements regarding Leon Johnson's testimony, but found no evidence supporting the appellant's claims of such agreements. An affidavit from Assistant District Attorney Randy Hillman confirmed the absence of any plea deal, as Leon Johnson was convicted following a jury trial. As a result, the appellant failed to meet the burden under Strickland to demonstrate that appellate counsel was deficient or that he suffered prejudice from their performance, thus he is not entitled to relief. Leon Johnson's conviction was upheld despite claims that he had an undisclosed agreement with the State, as no evidence supported such a deal. The court found no prejudice against the defendant and noted that the defendant failed to substantiate claims regarding witness Michael Clemons, who was not called to testify. The circuit court determined that issues related to Clemons' criminal record were irrelevant to the defendant's claims. The defendant's allegations were deemed speculative and unsupported by evidence, failing to meet the requirements under Alabama Rules of Criminal Procedure. Additionally, the defendant contested the circuit court's denial of a privilege log for withheld documents, which the State deemed work product. The court's in camera review concluded that the documents were privileged, and the denial of the privilege log was upheld as correct. The defendant also argued that his trial counsel had a conflict of interest due to Leon Johnson's prior employment with the district attorney's office, suggesting that prejudice should be presumed. Citing Ex parte Borden, the document highlighted the constitutional right to conflict-free counsel, linking it to the necessity of effective representation in criminal proceedings. Ultimately, the claims regarding the conflict of interest did not warrant a new trial, as the connections cited were insufficient to establish a violation of the defendant's rights. The excerpt outlines critical legal principles regarding the right to conflict-free counsel, emphasizing that defense attorneys must be free from any conflicts of interest that could compromise their loyalty to their clients. The U.S. Supreme Court has historically upheld this right, asserting that it applies to both appointed and retained counsel. To establish a violation of this right, a defendant must demonstrate that an actual conflict of interest adversely affected their attorney's performance, rather than merely suggesting a potential conflict. In the case discussed, the State contends that the defendant, Borden, must show a genuine conflict of interest to justify a reversal of his conviction. The circuit court found that Borden's attorney, Mickey Johnson, previously assisted the district attorney's office but was not involved in Borden's case during that time, and there was no evidence of a conflict. The court determined that there was no error or conflict of interest, and the standards outlined in relevant rules were not violated. Additionally, Borden's argument that his conviction was unconstitutional under the precedent set by Ring v. Arizona is rejected, as that decision does not apply retroactively to cases under collateral review. Consequently, the court affirms the circuit court's findings and denies Borden's claims for relief. The appellant contends that the circuit court improperly denied relief on multiple claims, including: failure to conduct a competency hearing; exclusion from trial; erroneous waiver of the right to be present; lack of advisement regarding self-representation; forced legal counsel; violations of double jeopardy from successive trials; denial of youthful offender treatment; improper admission of his confession and prior bad acts; flawed in-court identification processes; mishandling of jury tampering allegations; incorrect jury instructions; limited consideration of mitigating circumstances; prejudicial pretrial publicity; unfair juror selection regarding death penalty views; prosecutorial misconduct; and the constitutionality of electrocution and the death penalty in Alabama. However, the appellant fails to substantiate these claims with arguments as mandated by Rule 28(a)(10) of the Alabama Rules of Appellate Procedure, rendering his arguments inadequately presented. Additionally, these claims are deemed nonjurisdictional and barred under Rule 32.2(a) of the Alabama Rules of Criminal Procedure. The argument concerning electrocution is moot due to legislative changes favoring lethal injection. Consequently, the circuit court's judgment is affirmed. Discussion of the remaining arguments has been pretermitted. Established case law affirms that illegal or void sentences are challengeable at any time, as exemplified by *Hunt v. State*, which asserts that jurisdictional issues regarding unauthorized sentences can be reviewed regardless of preservation. The public defender indicated intentions to question the defendant's mental capacity, citing evidence from a fifth and sixth-grade evaluation indicating low IQ and slow cognitive processing. A pretrial motion was filed for a comprehensive psychiatric evaluation, highlighting concerns that the defendant might lack the sufficient ability to assist in his defense and understand his rights under various constitutional amendments. This belief was supported by: a) Previous questionable mental competence evaluations by the Alabama Department of Mental Health. b) Difficulties faced by counsel in communicating basic legal procedures to the defendant. c) Insights from the defendant's family and former counsel suggesting a potential history of mental health issues. d) The Shelby County Jail's recommendation for psychiatric treatment, leading to a preliminary evaluation indicating possible psychotic tendencies. The trial court granted the motion and stayed proceedings for the mental health evaluation. However, following the appointment of new counsel, the motion for evaluation was withdrawn for reasons not evident in the record. Additional evidence suggested the defendant had psychological disturbances, a low-functioning intellect, poor academic performance, and difficulties in work settings. The Alabama Supreme Court has urged legislative action to develop procedures following the holding in *Atkins*. The Legislature has not established a procedure for assessing mental retardation in capital defendants regarding the death penalty. However, it is concluded that Perkins does not meet the criteria for mental retardation as defined by the U.S. Supreme Court in Atkins or by state statutes that prohibit executing mentally retarded individuals. States requiring such a determination necessitate that a defendant have significantly subaverage intellectual functioning (an IQ of 70 or below) and significant deficits in adaptive behavior, with these issues arising before the age of 18. The relevant Alabama statute defines a "mentally retarded person" based on similar criteria. In assessing Mr. Clemons, examiners noted his lack of effort during testing, leading to the conclusion that the results were invalid. He is likely functioning in the borderline range of intellectual ability rather than mild mental retardation, as his social, educational, and occupational behaviors do not indicate significant intellectual impairment. The diagnosis of malingering was applied to describe his voluntary behavior, not a mental disorder. Evidence of malingering included implausible psychotic symptoms and inconsistencies in his accounts of these symptoms. Additionally, he maintained good personal hygiene, which is atypical for individuals with genuine psychotic disorders. No signs of disordered thought processes, which are common among those experiencing real hallucinations, were present in Mr. Clemons. Numerous inconsistencies exist in Mr. Clemons' reports compared to established knowledge about individuals with authentic psychotic disorders. While awaiting trial in Alabama in July 1994, he was evaluated at Taylor Hardin Secure Medical Facility. An examiner, unable to complete all tests due to Mr. Clemons' lack of cooperation, opined that his silence was a deliberate choice rather than a result of significant mental illness. The examiner suggested that Mr. Clemons was malingering regarding his intellectual capacity and mental state, estimating his intelligence in the mid 70s to mid 80s, which falls within the Borderline to Low Average range. Disparities in Mr. Clemons' IQ test scores from 2001 (77) to 2004 (60) raised concerns. Expert testimony indicated such a drop is unlikely without intervening health issues. The expert concluded that Mr. Clemons was likely not putting forth his best effort on various subtests. Specific examples showed discrepancies in his answers between the two testing years, which the expert interpreted as evidence of deliberate malingering. Additionally, the Test of Memory Malingering (TOMM) indicated that Mr. Clemons was also malingering concerning memory difficulties. An expert retained by the defense, Dr. Joseph Chong-Sang Wu, claimed that a Positron Emission Tomograph (PET) scan showed brain damage. However, Dr. Helen Mayberg, a state-appointed neurologist, countered that the PET scan was unreliable for this purpose and reported that Mr. Clemons exhibited normal brain activity without evidence of brain injury. The appellant sought to use PET scan results from 2004 to demonstrate a brain injury at birth in 1971; however, he failed to establish the reliability and acceptance of PET scans for diagnosing such old injuries, leading the circuit court to exclude the results based on the Frye standard. The appellant's request for a jury to assess mental retardation was not presented to the circuit court and was therefore not considered on appeal. Although he acknowledged the issue's limited relevance in the current state proceedings, he claimed its importance for future federal habeas corpus actions. Rule 32.6(a) was amended effective August 1, 2002, to allow fee waivers for in forma pauperis applications and to enable courts to collect fees from prisoners' accounts post-disposition. New counsel was appointed for the appellant during the motion for a new trial and direct appeal. The court noted its ability to take judicial notice of existing records. The appellant raised multiple arguments on direct appeal, including claims of double jeopardy, constitutional violations related to capital punishment, trial process issues, jury selection concerns, prosecutorial misconduct, ineffective assistance of counsel, and procedural errors. While the appellant highlighted that his previous counsel was disciplined by the Alabama State Bar, the court stated that such unrelated discipline does not affect trial performance, emphasizing the need to meet the Strickland standard for ineffective assistance claims. Additional claims made in the petition were not pursued on appeal and were deemed abandoned.