Capital Defense Weekly 2007

Capital Defense Weekly
[Available at http://capitaldefenseweekly.com/archives/070326.htm]

Leading of the edition is an interesting opinion out of Missouri, State v. Vincent McFadden. McFadden draws a firm line in the sand against race based peremptory challenges. The McFadden majority finds, as the headnotes so amply summarize, "the trial court clearly erred in denying McFadden's Batson challenge to the state's strike of one black female potential juror, purportedly because her bright red-orange hair made her very individualistic. In evaluating pretext, the trial court's chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case. Here, defense counsel refuted the state's conclusion that the woman's hair color was "crazy," noting it was fashionable within the black community and that she was neatly dressed. Viewing the totality of the circumstances, the prosecutor's subjective assumptions about the woman were not neutral, and the state's explanations are implausible and merely a pretext to exercise a peremptory strike for racially discriminatory reasons." Also playing in to the Court's ruling appears to be that they recently reversed the same prosecutor in a different prosecution against the same Defendant for the same sort of behavior. In dicta the Court also notes McFadden has a meritorious claim under Johnson v. Mississippi.

In the news this week remains the recent firings of eight U.S. Attorney, at least in some cases, for not seeking death enough. John Spirko was again reprieved for six months to permit more forensic DNA testing. In North Carolina “legislation, approved on a party-line vote of 9-5, would expand the pool of cases justices would be obligated to look at when performing what’s called a proportionality review.” Earl Washington’s long struggle for justice is a little bit closer to being resolved as Virginia has agreed to pay $1.9 million. Press accounts note that he New Hampshire House of Representatives by a small handful of votes failed to replace the states death penalty with LWOP. Governor Kaine in Virginia has vetoed expansion of that state’s death penalty.

Looking at what is likely to make news in the coming weeks, the Bush administration in Medellin v. Texas, has all but assured the SCOTUS will grant cert again on Vienna Convention claims by arguing that states must, if the President so directs, give effect to the Convention. Kentucky's lethal injection challenge has been permitted to depose he Commonwealth's execution team in Moore v. Parker; the entire of the proceedings & pleadings are available on CM/ECF.

The federal defender's Habeas Assistance & Training / Federal Death Penalty Resource Counsel have updated their list of upcoming capital litigation trainings. If you live in North America there list likely has a training near you.

Three cases of potential note for the next edition are set forth below. In In re: Kenneth Wayne Thomas the Fifth Circuit grants permission to file a successive petition on Atkins grounds and, in a footnote, notes the applicability of the Flynn Effect to such determinations. A split panel of the Fifth Circuit in United States v. Fields held that the Confrontation Clause does not apply to the penalty phase of capital trials. Finally, in an interlocutory appeal the New Jersey Supreme Court in State v. Steven Fortin severely limits the use of ViCAP data and "signature crime" evidence.

I would be remiss in not noting a major noncapital decision on eyewitness identification, People v LeGrand. The New York Court of Appeals holds that it was an abuse of discretion for the trial court to exclude expert testimony on the reliability of of eyewitness identifications. The Eyewitness Identification blog has the singularly best analysis on the case.

As always thank for reading and if you feel something got missed or you need to let us know about an upcoming event please feel free to shoot us an email. - k

Recent Executions
March
28 Vincent Gutierrez (Texas)
29 Roy Pippin (Texas)

Pending Executions
April
6 Robert Perez (Texas)
16 Bruce Webster (Federal) (unconfirmed reports of a stay)
~~17 John Spirko (Ohio)~~ Reprieved
18 Cathy Henderson (Texas / female)
24 James Filaggi (Ohio)
26 Ryan Dickson (Texas)

More Execution information*

WEEK OF MARCH 19, 2007
In Favor of Life or Liberty

State v. Vincent McFadden, 2007 Mo. LEXIS 40 (Mo. 3/20/2007)(dissent)
"McFadden raises valid challenges under Batson v. Kentucky and Johnson v. Mississippi." Prosecutor used race based strikes & therefore McFadden is entitled to a new trial. In dicta the Court notes that because McFadden's jurors were made aware of a death sentence that was stricken due to the same prosecutor using similar justifications for raced based strikes the death sentence would have been overturned regardless of the Batson violation.

Melvin Gene Hodges v. State, 2007 Ala. Crim. App. LEXIS 62 (Ala. Crim. App. 3/23/2007)
Remand ordered "for the circuit court to either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions, see Rule 32.9(a), Ala.R.Crim.P., regarding Hodges's allegations that trial counsel failed to conduct an adequate mitigation investigation and failed to adequately present mitigation evidence at the penalty phase. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Hodges's claims, and may grant whatever relief it deems necessary."

Ex Parte Exzavier Stevenson, No. WR-57,059-02 (Tex Crim App 03/21/07)
Relief granted as to death sentence as Stevenson appears to suffer from mental retardation.

Favoring Death

The People v. John Michael Beames, 2007 Cal. LEXIS 2277 (Cal 3/22/2007)
Relief denied most notably on "the trial court’s erroneous failure to instruct the jury on the lesser included offenses of second degree murder and involuntary manslaughter deprived him of his federal constitutional rights to a fair trial, due process of law, trial by jury, and a reliable penalty determination" and instructions indicating that the governor may grant clemency in any capital murder case.

In re:Roy Lee Pippin, 2007 U.S. App. LEXIS 6737 (5th Cir 3/21/2007) (unpublished)
Relief denied on "Pippin's motion for authorization to file a successive habeas application. His motions for a stay of execution and for leave to proceed in forma pauperis are also denied. The State's motion to strike Pippin's motion for authorization to file a successive habeas application is denied."

In re Charles Anthony Nealy, 2007 U.S. App. LEXIS 6435 (5th Cir 3/20/2007) (unpublished)
Permission to file a successor habeas denied.

In re Charles Anthony Nealy, 2007 U.S. App. LEXIS 6563 (5th Cir 3/20/2007) (unpublished)
Motion for stay and appointment denied. Permission to file a successor habeas denied.

Robert Foley v. Parker, 2007 U.S. App. LEXIS 6598 (6th Cir. 3/22/2007)(dissent)
Relief denied on claims relating to ineffective assistance of counsel, pretrial publicity -- failure to grant a change of venue and juror exposure to pretrial publicity. The reason this opinion is worthy of special notice, as the dissent notes, is how badly the panel’s majority rules on procedural issues & how badly it seems to not understand habeas law. **

Jose Jimenez v. McDonough, 2007 U.S. App. LEXIS 6803 (11th Cir 3/23/2007)
COA Denied on: "[1] the Florida Supreme Court's refusal on collateral review to apply a subsequent construction of the burglary statute to the conduct for which Jimenez was convicted violated due process and the Eighth Amendment prohibition against the arbitrary and capricious imposition of a death sentence; [2] Jimenez was deprived of a full and fair state post-conviction process in violation of the Sixth, Eighth, and Fourteenth Amendments; . . . [3] the state failed to disclose exculpatory evidence and/or knowingly presented misleading evidence, and/or defense counsel unreasonably failed to discover and present exculpatory evidence, in violation of the Fifth, Sixth, and Eighth Amendments; [4] Jimenez was denied a fair trial when the state failed to correct false testimony and presented improper argument in violation of the Sixth, Eighth, and Fourteenth Amendments; . . . and [5] the Florida capital sentencing scheme violates the Sixth Amendment by failing to require that the jury determine all elements of the crime of capital first-degree murder which made Jimenez eligible for a death sentence. The district court denied relief on all claims. COA also denied on "all of the other claims that the District Court found procedurally barred by virtue of state court registry counsel's conduct."

Steven Wayne Hall v. State, 2007 Ala. Crim. App. LEXIS 60 (Ala. Crim. App. 3/23/2007)
Relief denied on Rule 32 petition on ineffective assistance of counsel including absence of the accused at certain critical junctures in the trial, jury instructions in both phases, failure to investigate in the penalty phase, change of venue, failure to object as to mistakes by the court as to law and fact, failure to object to prosecutorial misconduct, as well as voir dire challenges)

Donnie Johnson v. State, 2007 Tenn. Crim. App. LEXIS 260 (Tenn. Crim. App. 3/22/2007)
Petition to compel testing of biological evidence as provided by the Post-Conviction DNA Analysis Act denied.

ADVANCE SHEET FOR THE WEEK OF MARCH 26, 2007
In Favor of Life or Liberty

In re: Kenneth Wayne Thomas, 2007 U.S. App. LEXIS 7459 (5th Cir 3/30/2007)
Permission granted to file a successive habeas petition. The issue for which the permission was granted is whether or not his execution is barred under Atkins v. Virginia. Interestingly the panel notes in Thomas that one of the old IQ tests at issue measured 77, but in a footnote states that given the inapplicability of the “Flynn effect” the actual measure should likely have been closer to 67. [h/t Sandrine Ageorges]

State v. Steven Fortin, 2007 N.J. LEXIS 333 (NJ 3/28/2007)
Although not readily capable of being categorized as either a win or a loss, it gets listed as a win. State sought introduction of ViCAP database evidence tending to suggest, the State posited, Fortin was guilty of the crime charged due to the similarities to a crime for which Fortin had previously been convicted. The sweep through the ViCAP database purportedly led an expert to call these offenses “signature crimes.” On Wednesday the New Jersey Supreme Court, in an otherwise unremarkable case (save for the litigants & those who practice in NJ), holds that ViCAP in most cases is inadmissible, especially under the facts in Fortin. The headnotes also note that: [A] “[s]ignature-crime evidence falls within the category of other-crime evidence, which is governed by N.J.R.E. 404(b).. . . When the signature-like aspect of a crime would not be apparent to the trier of fact, expert testimony may be necessary to explain the significance of the evidence;” [B] “signature-crime evidence may be highly probative” and on these facts “its probative value is not outweighed by its prejudicial effect,” “it is better that the jury know not only the similarities, but also the differences between the [two] crimes. Moreover, to limit the entirety of the [prior offense to merely summary evidence] will likely lead the jury to speculate, perhaps to defendant’s detriment, about the true nature of the crime;” and [C] the trial court should “carefully craft[ ] limiting instructions that explain how and for what purpose the jury is to consider the other-crime evidence in this case.”

Favoring Death

United States v. Sherman Fields, 2007 U.S. App. LEXIS 7413 (5th Cir 3/29/2007)(dissent)
"The 5th Circuit holds that hearsay, introduced in support of nonstatutory aggravating factors during the sentencing phase, is not excluded by the Confrontation Clause (King and Smith in majority, Benavides dissenting on this point). The court also says that the government was properly allowed to introduce photos showing the physical evidence in the case had degraded, in order to combat the “CSI effect” on the jury." [from the Appellate Law in Louisiana and Beyond ]

Heliberto Chi v. Quarterman, 2007 U.S. App. LEXIS 7462 (5th Cir 3/30/2007) (unpublished)
COA denied: "(1) Chi alleges he was deprived of his rights under the Vienna Convention on Consular Relations when he was not informed of his right to contact the Honduran Consulate, and therefore, the Texas trial court should have suppressed inculpatory statements Chi made to police; (2) Chi alleges Texas' death penalty scheme violates the Equal Protection Clause, under Bush v. Gore, 531 U.S. 98 (2000), because it lacks standards to guide prosecutors regarding whether to seek a death sentence; and (3) Chi alleges his due process rights were violated by the misconduct."

Johnny Ray Johnson v. Quarterman, 2007 U.S. App. LEXIS 7145 (5th Cir 3/28/2007)
"We deny Johnson's request for a COA. We conclude that the district court's holding that Johnson's federal habeas petition was untimely under AEDPA is not debatable among jurists of reason."

Scheanette v. Quarterman, ---- (5th Cir 3/28/2007)
COA denied on all claims (more next week).

Ex parte James Earl Walker, 2007 Ala. LEXIS 58 (Ala 3/30/2007)(dissent)
Relief denied over a notable claim, despite application of the plain error rule, that inculpatory statements were obtained as the result of an arrest not supported by probable cause.

David Woods v. State, 2007 Ind. LEXIS 168 (Ind 3/26/2007)
"Before us now is Woods's request to litigate a second, or 'successive' post-conviction proceeding involving two claims: (1) that he is exempt from the death penalty because he is mentally retarded, and (2) that his first state post-conviction proceeding was unfair because he had a dispute with his attorneys about strategy. Because we conclude Woods has not met the threshold showing required on either claim, we deny authorization for any further successive post-conviction proceedings."

James Hairston v. State, 2007 Ida. LEXIS 78 (Ida 3/28/2007)
Successive state petition for relief denied. "Hairston has failed to raise his claims in a timely manner and there is no basis for proceeding with this appeal. Because these claims fall outside the narrow exceptions provided in I.C. § 19-2719(5), the trial court's orders are not appealable, and we grant the State's motion to dismiss. "

State v. Robert Brandy, 2007 Ohio 1505 (Ohio App Div 3/30/2007)
Relief denied on claim that Brandt had "recently received newly discovered evidence that clearly shows how his conviction was the result of ineffective assistance of trial counsel for counsel[']s failure to call a material eyewitness to the crime."

NOTABLE NONCAPITAL CASES

People v LeGrand, 2007 NY Slip Op 02588 (NY 3/27/2007)
The good folks at the Eyewitness Identification blog note that the New York Court of Appeals in LeGrand held that:"it was an abuse of discretion for the trial court to exclude expert testimony on the reliability of of eyewitness identifications. With respect to the lack of correlation between confidence and accuracy and “the effect of postevent information on accuracy and confidence malleability,” it is error to exclude expert testimony in a case in which the identification is central and there is a lack of corroborating evidence.

In short, the law on expert testimony on eyewitness ID in New York now appears to be:

It is an abuse of discretion to exclude an ID expert when:

- The case turns on an uncorroborated eyewitness ID; and
- The subject matter of the expert’s tesstimony is generally accepted by experts in the field and beyond the ken of the average juror.

And the following factors affecting eyewitness reliability are both generally accepted and beyond the ken:

- Lack of correlation between confidence and accuracy;
- The adverse effect of confirming feedbback on eyewitness accuracy; and
- The malleability of eyewitness confideence.

On the above topics, the court at least implied that Frye hearings would no longer be necessary to establish general acceptance prior to admission of expert testimony."

Other looks are at the NY Legal Update, Sui Generis, & Simple Justice.

Selected Excerpts from, & Commentary on, this Edition's Cases

State v. Vincent McFadden, 2007 Mo. LEXIS 40 (Mo. 3/20/2007)
"McFadden raises valid challenges under Batson v. Kentucky and Johnson v. Mississippi."

This Court elaborated on the principles of Batson and its progeny in McFadden I. To summarize, racial discrimination in jury selection violates the Equal Protection Clause of the Constitution of the United States.(FN4)

A defendant can establish a prima facie case of discriminatory jury selection by "the totality of the relevant facts" of the prosecutor's behavior during the defendant's trial.(FN5) When the State provides a race-neutral reason for exercising a peremptory strike that is more than an unsubstantiated denial of discriminatory purpose, the defense must show that the State's explanation is pretextual and the true reason for the strike is racial.(FN6) The trial court's findings on a Batson challenge will be set aside if they are clearly erroneous, meaning the reviewing court is left with the definite and firm conviction that a mistake has been made.(FN7) This Court has such a conviction here.

McFadden challenges on Batson grounds the State's exercise of peremptory strikes to remove two African-American women from the jury pool. The State claimed to remove venireperson D.C. because she participated in her church choir's annual Christmas concert at a local prison workhouse. The State claimed to remove venireperson S.H. because she did not have a driver's license, she had "crazy red hair," and she seemed hostile. The Court finds a clear Batson violation in the State's removal of S.H. for having red hair. This being dispositive, the Court does not opine on the removal of D.C.

The trial court rejected the State's justification for removing S.H. for not having a driver's license and for seeming hostile. The court found the lack of driver's license irrelevant and perceived that S.H. was not hostile but merely exasperated by the State's interrogation concerning the license. In response to the State's justification for removal of S.H. because of her bright red hair,(FN8) defense counsel explained that S.H.'s hair color, though perhaps uncommon among the prosecutor's acquaintances, was quite fashionable in the African-American community. The trial court, sharing the prosecution's unfamiliarity, agreed that the look "[made] her separate from the crowd, and very individualistic" and allowed the strike.

Normally, evidence of discrimination is established when the State's reason for striking an African-American venireperson applies to an otherwise-similar member of another race who is permitted to serve.(FN9) It does not appear that there was a white juror with distinctive hair, but an identical comparison is not necessary. "A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable."(FN10) In evaluating pretext, a trial court considers whether the explanation is (1) race-neutral, (2) related to the case to be tried, (3) clear and reasonably specific, and (4) legitimate. (FN11) The trial court's "chief consideration should be the plausibility of the prosecutor's explanations in light of the totality of the facts and circumstances surrounding the case."(FN12)

Applying the foregoing factors, first, whether the State's explanation is race-neutral to begin with is dubious. The State relies on State v. Williams,(FN13) where the prosecutor exercised a peremptory strike to remove an African-American venireperson whose "earrings and clothing indicated that he was 'trying to be different' and was 'liberal.'"(FN14) This Court rejected that Batson challenge, finding that "striking a prospective juror based upon clothing and attire does not reflect an inherent racial bias."(FN15)

Here, however, defense counsel refuted the State's conclusion that S.H.'s hair color was crazy and noted that S.H. was neatly dressed. The Court acknowledges that peremptory strikes are subjective, and great reliance is placed on the trial court's assessment of the legitimacy of the State's explanation.(FN16) In this case, however, the record suggests that the trial judge was initially inclined to sustain McFadden's Batson challenges but then retreated. The Court's deference to the trial court is not without limits. Viewing the totality of circumstances - the prosecution's disdain for S.H.'s red hair, his scrutiny of her lack of driver's license, and his misperception of her reaction as hostile - the prosecution's subjective assumptions about S.H. are far from neutral.(FN17)

Second, the State fails to articulate how S.H's red hair, even if it were as unusual as the prosecution found it, was related to the case other than another conclusional inference that S.H. was individualistic. Here again, the State and the trial court presume to identify difference from a limited cultural view. "[P]otential jurors are not products of a set of cookie cutters,"(FN18) nor should they be. Third, the State's explanation was clear and specific, to wit, "crazy-looking red hair," which renders clear the analysis of the fourth and fatal factor, legitimacy. The State's justification for removing S.H. because of her hair color is not legitimate. In light of the totality of facts and circumstances, the Court finds the prosecution's explanations implausible and merely a pretext to exercise a peremptory strike for racially discriminatory reasons. The trial court's denial of the McFadden's Batson challenge was clearly erroneous.

Melvin Gene Hodges v. State, 2007 Ala. Crim. App. LEXIS 62 (Ala. Crim. App. 3/23/2007)

Remand ordered "for the circuit court to either conduct an evidentiary hearing or accept evidence in the form of affidavits, written interrogatories, or depositions, see Rule 32.9(a), Ala.R.Crim.P., regarding Hodges's allegations that trial counsel failed to conduct an adequate mitigation investigation and failed to adequately present mitigation evidence at the penalty phase. After receiving and considering the evidence presented, the circuit court shall issue specific written findings of fact regarding Hodges's claims, and may grant whatever relief it deems necessary."

Hodges contends that this case must be remanded because, he says, the circuit court's final order dismissing his Rule 32 petition, issued on February 16, 2005, contains insufficient detail and because, he says, the court purported to rely on its independent recollection of the trial to dismiss claims that, in fact, were beyond circumstances the trial court could have observed at trial. Specifically, Hodges argues that as to claims of ineffective assistance of counsel regarding the inadequate investigation and presentation of mitigating circumstances, the circuit court could not have an independent recollection of trial counsel's investigation of the case and it could not have known what actions trial counsel took or did not take in preparation for the trial. The State concedes that the circuit court's one-page order was insufficient [*113] and alleges that the case is due to be remanded for a more specific order. In addition to claims I.H. and I.U., which alleged that trial counsel failed to conduct an adequate mitigation investigation and failed to adequately present mitigation evidence at the penalty phase, the State lists several other claims that, it argues, the circuit court should not have summarily dismissed.. . . .

However, Hodges's allegations that trial counsel were ineffective for failing to conduct an adequate mitigation investigation and for not presenting the mitigation evidence they should have discovered are not matters about which the circuit court could be expected to have personal knowledge of [*116] the actual facts underlying those claims. As to those claims, the circuit court erred in relying on its personal knowledge of the facts without stating its reasons in the order. Furthermore, it appears that the claims regarding the mitigation investigation are facially meritorious and were pleaded with sufficient specificity. Hodges alleged that his trial counsel were ineffective for failing to conduct an adequate mitigation investigation to discover the aspects of his character and history and life circumstances that could be presented to the jury. See § 13A-5-52, Ala. Code 1975. He alleged that, if counsel had conducted the necessary investigation and presented the resulting mitigation evidence at the penalty phase, more than eight jurors might have been persuaded to vote for a sentence of life imprisonment without parole. He further alleged that, because a jury recommendation of life imprisonment without parole is a mitigating circumstance in the trial court's sentencing decision, see Ex parte Carroll, 852 So. 2d 833, 836 (Ala. 2002), if more jurors had voted for a sentence of life imprisonment without parole, the trial court might have [*117] been persuaded to follow the jury's recommendation. Hodges also alleged that trial counsel's failure to present the substantial mitigation evidence could not be considered a strategic decision because it was not based on a reasonable investigation. See Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

In Ex parte Carroll, the Alabama Supreme Court explained the effect of a jury's recommendation of life imprisonment without parole. It stated:

"The weight to be given that mitigating circumstance should depend upon the number of jurors recommending a sentence of life imprisonment without parole, and also upon the strength of the factual basis for such a recommendation in the form of information known to the jury, such as conflicting evidence concerning the identity of the 'triggerman' or a recommendation of leniency by the victim's family; the jury's recommendation may be overridden based upon information known only to the trial court and not to the jury, when such information can properly be used to undermine a mitigating circumstance."

Ex parte Carroll, 852 So. 2d at 836. Thus, Hodges correctly alleged that, if more jurors [*118] had recommended a life-without-parole sentence upon hearing additional mitigating circumstances, that recommendation would have been entitled to even more weight in the trial court's consideration of the aggravating and mitigating circumstances.

In Claims I.H. and I.U. in his petition, Hodges alleged specific facts indicating that counsel failed to investigate and present the following mitigation: that Hodges had been exposed to continuous and extreme violence during his childhood; that alcohol and drug abuse plagued Hodges and his family; that Hodges had been raised in extreme poverty; that Hodges had been repeatedly abandoned and had had no male role model; that Hodges had been constantly moved from one unstable home to another; and that Hodges had attempted to lead a positive life in the year before the murder. (Supp. C. 1009-26, 1054-58.) n9 We agree with Hodges that it is not plausible that the circuit court could have had personal knowledge of the facts underlying any of these claims of ineffective assistance based on the court's recollection of the trial proceedings.

Furthermore, we note that the factual allegations in the claims listed the kind of evidence the United States Supreme Court has recognized as mitigating. In Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), the United States Supreme Court found that trial counsel's performance at trial had been ineffective because they failed to adequately investigate and present significant mitigating evidence to the jury. The Court stated:

"They failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records. Had they done so, the jury would have learned that Williams' parents had been imprisoned for the criminal neglect of Williams and his siblings, that Williams had been severely and repeatedly beaten by his father, that he had been committed to the custody of the social services bureau for two years during his parents' incarceration (including one stint in an abusive foster home), and then, after his parents were released from prison, had been returned to his parents' [*120] custody.

"Counsel failed to introduce available evidence that Williams was 'borderline mentally retarded' and did not advance beyond sixth grade in school. ... They failed to seek prison records recording Williams' commendations for helping to crack a prison drug ring and for returning a guard's missing wallet, or the testimony of prison officials who described Williams as among the inmates 'least likely to act in a violent, dangerous or provocative way. ... Counsel failed even to return the phone call of a certified public accountant who had offered to testify that he had visited Williams frequently when Williams was incarcerated as part of a prison ministry program, that Williams 'seemed to thrive in a more regimented and structured environment,' and that Williams was proud of the carpentry degree he earned while in prison."

Williams v. Taylor, 529 U.S. at 395-96 (footnote omitted). Many of the factual allegations in Hodges's petition refer to information like that in Williams v. Taylor.

Because Hodges's claims were sufficiently pleaded and unrefuted by the State, they must be accepted as true, and Hodges is entitled to an opportunity to present evidence [*121] to prove the claims. See, e.g., Butler v. State, 942 So. 2d 389, 392 (Ala. Crim. App. 2005). Therefore, we must remand this case for the circuit court to allow Hodges an opportunity to present evidence in support of these claims of ineffective assistance of counsel. See Part XI of this opinion.

SMALL PRINT
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*Execution date information per Rick Halperin and other sources.

**Previously involved in representation of individual listed.