Albarran State Motion To Dismiss

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

BENITO ALBARRAN, )
)
Petitioner, )
)
v. ) CC-06-1522.60
)
STATE OF ALABAMA, )
)
Respondent. )

STATES ANSWER AND MOTION FOR DISMISSAL OF ALBARRANS
AMENDED RULE 32 PETITION

Comes now the State of Alabama, Respondent in the
above-styled cause, and moves this Honorable Court to
summarily dismiss the amended Rule 32 petition filed on
behalf of the petitioner, Benito Albarran. As grounds for
its motion, the State says the following:
LEGAL PRINCIPLES CONCERNING RULE 32
Rule 32.3, Ala. R. Crim. P., provides:
The petitioner shall have the burden of
pleading and proving by a preponderance of the
evidence the facts necessary to entitle the
petitioner to relief. The state shall have the
burden of pleading any ground of preclusion, but
once a ground of preclusion has been pleaded, the
petitioner shall have the burden of disproving its
existence by preponderance of the evidence.

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

The petition must contain a clear and
specific statement of the grounds upon which
relief is sought, including full disclosure of the
ELECTRONICALLY FILED
7/28/2014 9:04 AM
47-CC-2006-001522.60
CIRCUIT COURT OF
MADISON COUNTY, ALABAMA
JANE C. SMITH, CLERK
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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.

The burden of pleading under Rule 32.3 and Rule
32.6(b) is a heavy one. McNabb v. State, 991 So. 2d 313,
318 (Ala. Crim. App. 2007). Accordingly, under Rules 32.3
and 32.6(b), [t]he full factual basis for the claim must
be included in the petition itself. McNabb, 991 So. 2d at
318.
Accordingly, Albarran is not entitled to an evidentiary
hearing unless he first meets the pleading requirements of
Rule 32.3 and Rule 32.6(b) for Rule 32.6(b) requires that
the petition itself disclose the facts relied upon in
seeking relief. Boyd v. State, 913 So. 2d 1113, 1125-26
(Ala. Crim. App. 2003) (emphasis in original). For, as the
Court of Criminal Appeals has held, it is not the pleading
of a conclusion which, if true, entitle[s] the petitioner
to relief. Boyd, 913 So. 2d at 1125. Instead, [i]t 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,
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Ala. R. Crim. P., to present evidence proving those alleged
facts. Id. Emphasis in original.
Furthermore, [a]n evidentiary hearing on a [Rule 32]
petition is required only if the petition is meritorious
on its face. Bracknell v. State, 883 So. 2d 724, 727
(Ala. Crim. App. 2003) (quoting Ex parte Boatwright, 471
So. 2d 1257, 1258-59 (Ala. 1985)). The Alabama Supreme
Court has stated that:
A petition for [postconviction relief] is
meritorious on its face only if it contains a
clear and specific statement of the grounds upon
which relief is sought, including full disclosure
of the facts relied upon (as opposed to a general
statement concerning the nature and effect of
those facts), sufficient to show that the
petitioner is entitled to relief if those facts
are true.

Ex parte Clisby, 501 So. 2d 483, 486 (Ala. 1986) (internal
citations omitted). Thus, Albarran is not automatically
entitled to an evidentiary hearing on any of the
allegations presented in his petition.
Furthermore, a circuit court may summarily dismiss a
claim on the merits in certain cases. For instance,
[w]here a simple reading of the petition for post-
conviction relief shows that, assuming every allegation of
the petition to be true, it is obviously without merit or
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is precluded, the circuit court [may] summarily dismiss
that petition. Bryant v. State, CR080405, 2011 WL
339585, at *6 (Ala. Crim. App, February 4, 2011).
Additionally, a judge who presided over the trial or other
proceeding and observed the conduct of the attorneys at the
trial or other proceeding need not hold a hearing on the
effectiveness of those attorneys based upon conduct that he
observed. Boyd, 913 So. 2d at 1126 (quoting Ex parte
Hill, 591 So. 2d 462, 463 (Ala. 1991)). Accordingly, in
assessing Albarrans claims in this case, [i]f the circuit
judge has personal knowledge of the actual facts underlying
the allegations in the petition, he may deny the petition
without further proceedings so long as he states the
reasons for the denial in a written order. Id.
LEGAL PRINCIPLES CONCERNING INEFFECTIVE ASSISTANCE OF
COUNSEL

To prevail on his ineffective assistance of counsel
claims, Albarran must satisfy the two-part test of
Strickland v. Washington, 466 U.S. 668 (1984). Albarran
must show that: (1) counsels performance was deficient
because it fell below an objective standard of
reasonableness; and, (2) that the deficient performance
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prejudiced the petitioner. Id. at 687. In promulgating
that standard, the Court held:
First, the defendant must show that counsels
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the counsel guaranteed
the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing
that counsels errors were so serious as to
deprive the defendant of a fair trial, a trial
whose result is reliable.

Id.
Establishing ineffective assistance of counsel under
Strickland is difficult. As the United States Supreme
Court has recently held, [s]urmounting Strickland's high
bar is never an easy task. Harrington v. Richter, 131
S.Ct. 770, 788 (2011) (citing Padilla v. Kentucky, 130
S.Ct. 1473, 1485 (2010)). Under the first prong, the
standard for judging counsels performance is
reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688. There is a strong
presumption that counsels conduct falls within the wide
range of reasonable professional assistance. Id. at 689.
Review of counsels conduct is appropriately highly
deferential because the craft of trying cases is far from
an exact science; in fact, it is replete with uncertainties
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and obligatory judgment calls. Bolender v. Singletary, 16
F.3d 1547, 1557 (11th Cir. 1994). Otherwise, [a]n
attorney looking at a trial transcript can always find
places where objections could have been made. Hindsight is
not always 20/20, but hindsight is always ineffective in
evaluating performance of trial counsel. Tarver v. State,
629 So. 2d 14, 19 (Ala. Crim. App. 1993). Accordingly,
because counsels conduct is presumed to have been
reasonable, the analysis under Strickland has nothing to
do with what the best lawyers would have done ... [or] what
most good lawyers would have done. Grayson v. Thompson,
257 F.3d 1194, 1216 (11th Cir. 2001). Instead, the
question is whether some reasonable lawyer at the trial
could have acted, in the circumstances, as defense counsel
acted at trial. Id.
For that reason, to show that counsels performance
was unreasonable, the petitioner must establish that no
competent counsel would have taken the action that his
counsel did take. Id. (Emphasis in original). Thus,
counsels performance will not be found deficient if a
reasonable lawyer could have decided, under the same
circumstances, not to investigate or present particular
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evidence. See Crawford v. Head, 311 F.3d 1288, 1312 (11th
Cir. 2002) (This court agrees that testimony from a mental
health expert ... would have been admissible and might be
considered to be mitigating. However, trial counsel chose
to pursue a strategy of focusing the jurys attention on
the impact of a death sentence on petitioners family.
This court will not second guess trial counsels deliberate
choice.); Housel v. Head, 238 F.3d 1289, 1295 (11th Cir.
2001) ([A]bandoning one defense in favor of another that
counsel reasonably perceives to be more meritorious is not
deficient performance, even if it means that the jury does
not hear certain kinds of mitigation evidence.).
Under the prejudice prong of Strickland, [i]t is not
enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding. 466
U.S. at 693. Instead, [t]he question is whether there is
a reasonable probability that, absent the errors, the
sentencer ... would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death. Id. at 695. Thus, in determining whether,
without the errors, there is a reasonable probability that
the balance of aggravating and mitigating circumstances
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would have been different, a reviewing court must consider
the aggravating circumstances that were proved beyond a
reasonable doubt at trial. See also Bolender v.
Singletary, 16 F.3d 1547, 1556-1557 (11th Cir. 1994).
In a Rule 32 proceeding, the petitioner has the burden
of pleading a clear and specific statement of the grounds
upon which relief is sought, including full disclosure of
the factual basis for those grounds. Ala. R. Crim. P.
32.6(b), 32.3. Thus, the petitioner must include in his
petition a full disclosure of the facts entitling him to
relief under Strickland. If the petitioner fails to
specifically plead facts that would, if true, establish
both the deficient performance prong and the prejudice
prong of Strickland, then summary dismissal is appropriate
under Rule 32.6(b) and 32.7(d) of the Alabama Rules of
Criminal Procedure. See Bracknell v. State, 883 So. 2d
724, 727-28 (Ala. Crim. App. 2003).
RESPONSE TO PROCEDURAL HISTORY
The State does not dispute Albarrans general
procedural history of the case with the exception that
Albarran incorrectly states that the trial court did not
enter an order setting aside, vacating, modifying, or
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annulling its January 31, 2008 order. (Pet. at 4.) The
record reveals that the trial court granted Albarrans
motion on April 10, 2008 and orally vacated and set aside
the January 31, 2008 order transferring the trial to
Calhoun County. (R. 337.)
RESPONSE TO THE GROUNDS FOR PETITION
In paragraphs 23-33, Albarran raises several
introductory arguments concerning the claims raised in his
Rule 32 petition. The State denies that Albarrans
constitutional rights were violated and further denies the
specific arguments raised within these paragraphs. To the
extent that Albarran attempts to excuse any deficiencies in
his Rule 32 petition on the basis of lack of funds or
experts (Pet. at 9), such a claim is meritless and does not
relieve Albarran of his duty to plead the full factual
basis of each of his claims in his Rule 32 petition. See
Boyd v. State, 913 So. 2d 1113, 1125-26 (Ala. Crim. App.
2003) (Rule 32.6(b) requires that the petition itself
disclose the facts relied upon in seeking relief.).
Moreover, Albarrans attempt to incorporate into his
Rule 32 petition any yet-to-be-filed pleadings, affidavits,
or witness lists which may be served before, during, or
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after the evidentiary hearing in this case is improper.
Albarran is not entitled to an evidentiary hearing unless
he specifically pleads facially meritorious claims in his
petition. Accordingly, such clear, specific facts must be
pleaded in his Rule 32 petition in order to be entitled to
an evidentiary hearing. See Boyd, 913 So. 2d at 1125
([i]t 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.)(Emphasis added.)
Thus, Albarran cannot rely on factual allegations that have
not yet been pled in his Rule 32 petition in arguing that
he is entitled to an evidentiary hearing.
1

1
The State adopts the following references to the record below: R. _ refers
to the court reporters trial transcript, C._ refers to the clerks record
on direct appeal, and Supp. C._ refers to the clerks supplemental record
on direct appeal .

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RESPONSE TO GROUNDS SUPPORTING ALBARRANS
AMENDED RULE 32 PETITION

I. ALBARRANS CLAIM THAT HIS CONVICTION AND SENTENCE ARE
UNCONSTITUTIONAL BECAUSE THE TRIAL COURT WAS WITHOUT
JURISDICTION TO TRY THE CASE IN MADISON COUNTY.

In paragraphs 34-60, Albarran alleges that the trial
court did not have jurisdiction to try his case in Madison
County. Although admitting that a trial court transferring
a case from a particular county retains jurisdiction to set
aside, vacate, modify, or annul the order transferring the
place of trial, Albarran contends that the trial courts
January 31, 2008 order transferring the trial to Calhoun
County divested the trial court in Madison County of
jurisdiction. Albarran further contends that the trial
court never set aside, vacated, modified, or annulled its
order transferring the case to Calhoun County.
This claim should be summarily dismissed because it is
refuted by the record and is without merit. Ala. R. Crim.
P. 32.7(d); McNabb v. State, 991 So. 2d 313, 320 (Ala.
Crim. App. 2007)(Thus, because this claim was clearly
refuted by the record, summary denial was proper pursuant
to Rule 32.7(d), Ala. R. Crim. P.). Here, the record
demonstrates that the trial court properly vacated and set
aside the order transferring the trial to Calhoun County.
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After granting an order to change the venue of a trial,
a trial court still retains control over the order to
modify, change, or vacate it. See Ex parte Morrow, 66 So.
2d 130, 133 (Ala. 1953). Specifically, the order changing
the place of trial may be set aside, vacated, modified, or
annulled by the court making it. Morrow, 66 So. 2d at
133.
On January 31, 2008, the trial court granted Albarrans
Motion for Change of Venue and transferred the trial from
Madison County to Calhoun County. (C. 240.) However, on
April 3, 2008, Albarran filed a waiver of venue for his
trial to be held in Madison County. Id. at 246. Albarran
contends that this waiver related back to his original
request to change venue from Madison County. But in any
event, on April 10, 2008, the trial court conducted a
hearing on this matter in which Albarran moved both to
continue his trial and to have the trial court return his
trial to Madison County. (R. 334-336.) The trial court
then granted Albarrans request. Id. at 337. Thus, the
trial courts granting of Albarrans request on April 10,
2008 vacated and set aside the January 31, 2008 order
transferring the trial to Calhoun County.
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Albarrans allegation that the trial court never set
aside its January 31, 2008 order is incorrect. Although
the trial court noted that Albarran waived the change of
venue, the record demonstrates that Albarrans counsel made
a motion to both continue the trial and to return venue of
the trial to Madison County which the trial court granted.
(See R. 337-388)(And we do not make such a motion lightly
and are keenly aware of the logistics of all of this and
appreciate the Courts consideration.)(Emphasis added.)
While Albarrans allegation on the fact that trial counsel
also used the word waiver in making his request, the
record refutes his allegation. It was clear from the
record that trial counsel made a request to return venue to
Madison County and the trial court granted that request and
orally vacated the order transferring venue to Calhoun
County.
Finally, pursuant to Rule 10.3 of the Alabama Rules of
Criminal Procedure, the trial court continued to properly
preside over Albarrans case after the January 31, 2008
order transferring the trial to Calhoun County as well as
after the January 31, 2008 was set aside on April 10, 2008.
Moreover, the record does not indicate that the case was
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ever docketed in Calhoun County or that the file or any
records were ever transmitted to Calhoun County as required
by statute. See Ala. Code 15-2-25. Instead, the record
indicates that Albarrans case remained in Madison County.
Thus, because this claim is both meritless and refuted by
the record, it is due to be dismissed. Ala. R. Crim. P.
32.7(d).
II. ALBARRANS CLAIM THAT HIS TRIAL COUNSEL WAS
INEFFECTIVE.

In paragraphs 61-491, Albarran alleges that his trial
counsel rendered ineffective assistance of counsel. As an
initial matter, paragraphs 61-67 merely serve as
introductory paragraphs to the sub-claims raised in his
petition. These paragraphs fail to allege a specific claim
under Rule 32.1 and should be summarily dismissed. These
paragraphs further fail to allege any specific facts that,
if true, would establish how trial counsels performance
was deficient or how Albarran was prejudiced. See Ala. R.
Crim. P. 32.6(b). Therefore, these paragraphs should be
summarily dismissed. Ala. R. Crim. P. 32.7(d).
Additionally, Albarrans reliance on the American Bar
Association (A.B.A.) Guidelines as a standard for
determining what constitutes an appropriate investigation
15

is misplaced. This attempt to inject the A.B.A. Guidelines
as a standard for ineffectiveness has never been recognized
in Alabama. Alabama courts have never adopted the A.B.A.
Guidelines, nor are such guidelines determinative of
whether counsels performance was effective; [r]ather, the
two-pronged analysis set forth in Strickland remains the
standard for deciding ineffective-assistance-of-counsel
claims. Jones v. State, 43 So. 3d 1258, 1278 (Ala. Crim.
App. 2007).
Moreover, as the United States Supreme Court has held,
Strickland stressed, however, that American Bar
Association standards and the like are only guides to
what reasonableness means, not its definition. Bobby v.
Van Hook, 130 S.Ct. 13 (2009) (quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984)). Instead, the
Federal Constitution imposes one general requirement: that
counsel make objectively reasonable choices. Id., quoting
Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000). Therefore,
Albarrans suggestion that the A.B.A. Guidelines serve as a
standard for his counsels performance is without merit or
support and should be rejected by this Court.
16

Albarrans claim of ineffective assistance of counsel
is comprised of several sub-claims. Accordingly, each of
these sub-claims will be addressed by the State below as
follows:
A. The claim that trial counsel was ineffective in
pre-trial preparation.

counsel was ineffective in pre-trial preparation and
litigation. This sub-claim contains additional sub-claims
which are addressed individually below.
1. The claim that trial counsel failed to secure
Albarrans presence at critical proceedings.

In paragraphs 68-77, Albarran contends that his trial
counsel was ineffective for failing to secure his presence
at critical pre-trial and trial proceedings. Albarran
alleges that his trial counsel failed to secure his
presence for a hearing on his motion to change venue, two
ex parte hearings, and during the jurys visit to the crime
scene during trial. This claim is due to be dismissed for
several reasons.
First, this claim should be dismissed because it is
facially meritless and fails to state a material issue.
Ala. R. Crim. P. 32.7(d). Alabama courts have held that
17

if a capital defendant is absent from noncritical stages of
trial and if his presence would not have benefitted his
defense, no error occurs. Burgess v. State, 723 So. 2d
742, 760 (Ala. Crim. App. 1997) (holding that no error
occurred where defendant was not present for two pretrial
motion hearings and in-chambers discussions with counsel
from both parties).
Here, the proceedings complained of by Albarran were
noncritical stages of trial. The proceedings simply
involved a pre-trial motion hearing and an ex parte motions
hearing and did not involve any critical proceedings. In
fact, at the pre-trial motion hearing on January 11, 2008,
the circuit court granted Albarrans motion to change
venue. (R. 182-183.) Thus, even assuming these
allegations as true, Albarran cannot establish that he is
entitled to any relief.
Moreover, although Albarran contends that he was not
present for the April 10, 2008 hearing in which the trial
court set aside the change of venue and further contends
that his counsel did not inform him of their decision to
waive change of venue (Pet. at 30), the record refutes this
claim. The record specifically demonstrates that Albarran
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agreed to set aside the change of venue and waived his
presence at the hearing. (C. 246; see also R. 335)
([f]irst of all, in behalf of Defendant Albarran, he
waives his presence at this hearing.) Thus, because this
claim is refuted by the record and further fails to state a
material issue, it is due to be summarily dismissed. Ala.
R. Crim. P. 32.7(d).
Second, in the alternative, this claim should be
summarily dismissed because it is insufficiently pleaded.
Ala. R. Crim. P. 32.6(b). In particular, Albarran fails to
specifically plead how he was prejudiced under Strickland
by his absence at these pre-trial hearings. Albarran
alleges in a conclusory fashion that his absence rendered
him incapable of participating and assisting counsel in
his defense. (Pet. at 32.)
Yet Albarran fails to plead how he specifically would
have participated in these hearings or assisted his
counsel. Albarran also fails to plead any specific facts
concerning the actions or specific role he would have taken
during the hearings. In fact, Albarran fails to plead that
any action took place at the hearings that was against his
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desire or that any action took place that unfairly
prejudiced him.
For example, although Albarran complains that he was
not present during a February 6, 2008 ex parte hearing, he
fails to specifically plead what events occurred during the
hearing, what actions he would have taken during the
hearing, or that what transpired during the hearing was
against his wishes. Most importantly, Albarran has failed
to plead any facts that, if true, would show a reasonable
probability that the outcome of his trial would have been
different had he been present for these noncritical
hearings. Accordingly, Albarrans claim is nothing but a
bare, conclusory allegation. See Hyde v. State, 950 So. 2d
344, 356 (Ala. Crim. App. 2006)(A bare allegation that
prejudice occurred without specific facts indicating how
the petitioner was prejudiced is not sufficient.).
Therefore, because this claim is insufficiently pleaded and
no purpose would be served by any further proceedings, it
is due to be dismissed. Ala. R. Crim. P. 32.7(d).
2. The claim that trial counsel was ineffective
for failing to litigate Albarrans mental
retardation claim prior to trial.

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counsel was ineffective for failing to request a pre-trial
determination of his claim that he is mentally retarded.
insufficiently pleaded. Ala. R. Crim. P. 32.6(b).
Albarrans claim is nothing but a bare, conclusory
assertion. Albarran fails to plead any specific facts
that, if true, would establish that he was prejudiced under
Strickland by the failure to litigate his mental
retardation claim prior to trial.
As the record demonstrates, Albarran fully litigated
his mental retardation claim during the sentencing hearing
after which the trial court denied his Atkins claim. (R.
4327-4503.) The Alabama Court of Criminal Appeals
affirmed, holding that Albarran failed to meet his burden
of establishing that he was mentally retarded. Albarran v.
State, 96 So. 3d 131, 199-200 (Ala. Crim. App. 2011).
Albarran utterly has failed to plead any specific facts
that, if true, would show how there is a reasonable
probability that he would have been found mentally retarded
had his trial counsel litigated the issue pre-trial as
opposed to during the sentencing hearing. Notably,
21

Albarran fails to plead any facts that, if true, would call
into question the trial courts finding that he was not
mentally retarded. Nor does he plead any new facts that,
if true, would establish a reasonable probability that he
would have been found to be mentally retarded regardless
of when the issue was raised. Instead, Albarran merely
asserts in a conclusory fashion that the trial court would
have found him to be mentally retarded if the claim was
raised pre-trial, without pleading any specific facts that,
if true, would explain how such a finding would have been
made.
Albarran also alleges that he was prejudiced by not
litigating the mental retardation claim pre-trial because
the trial court considered evidence presented during the
guilt and penalty phases in ruling on his Atkins claim. As
an initial matter, Albarran fails to plead what specific
evidence was presented during the guilt and penalty phases
that he contends the trial court should not have
considered. In any event, Albarran has failed to
specifically plead any facts that, if true, would establish
that this same evidence could not have otherwise still been
presented in a pre-trial Atkins hearing.
22

Albarran also argues that trial counsels failure to
raise the Atkins claim pre-trial prevented counsel from
devising an alternative litigation strategy to present to
the jury. Yet Albarran again utterly fails to plead any
specific facts that, if true, would show what this
alternative strategy would have been. Although Albarran
contends that his trial counsel could have consulted
without another expert or devised a strategy to rebut the
States impeachment of his experts if the issue had been
raised pre-trial, he fails to plead facts concerning what
specific strategies his counsel would have employed, how
these strategies would have been different from what was
presented during the mental retardation hearing, or what
new or different facts could have been presented.
Finally, Albarran contends that he was prejudiced
because, by failing to litigate the issue of mental
retardation pre-trial, the jury did not hear any evidence
of his mental retardation prior to recommending a sentence
of death. However, this argument is simply a bare
allegation not supported by the record. Notably, during
the guilt phase, the jury heard testimony about his
intellectual functioning and the fact that he had an IQ
23

score of 71. (R. 2849-2850.) Moreover, the trial court
considered the evidence Albarran presented concerning his
alleged mental retardation as a mitigating circumstance in
its sentencing determination. (C. 462.)
Accordingly, Albarrans claim is nothing but a bare
allegation and it should be dismissed. Albarran has failed
to plead any facts that, if true, would establish a
reasonable probability that he would have been found to
mentally retarded had his trial counsel raised the Atkins
claim pre-trial. Moreover, Albarran has failed to
specifically plead how his trial counsel was deficient for
litigating his Atkins claim in this manner given both that
the procedures for litigating Atkins claims were relatively
new and that there was no absolute requirement to litigate
an Atkins claim pre-trial as opposed to during a sentencing
hearing. See Smith v. State, No. 1060427, 2007 WL 1519869
(Ala. May 25, 2007). Therefore, because this claim is
insufficiently pleaded and no purpose would be served by
any further proceedings, it should be summarily dismissed.
Ala. R. Crim. P. 32.7(d).

24

3. The claim that trial counsel failed to
adequately investigate and litigate Albarrans
incompetence to stand trial.

counsel was ineffective for failing to request a pre-trial
determination of his competence to stand trial and for
failing to retain an expert to conduct an independent
competency evaluation. This claim should be summarily
dismissed for several reasons.
First, this claim is insufficiently pleaded. Ala. R.
Crim. P. 32.6(b). Albarran has failed to plead specific
facts that, if true, would show prejudice under Strickland.
Specifically, Albarran has failed to plead facts that, if
true, would show he was actually incompetent.
Although Albarran generally alleges that he was
incompetent to stand trial, he fails to specifically plead
facts or evidence that could have been presented that would
have risen to the level of demonstrating incompetence to
stand trial. For example, Albarran alleges one of his
experts, Dr. Weinstein will testify that the court-ordered
competency evaluation conducted at Taylor Hardin prior to
trial was inadequate. (Pet. at 46.) Yet Albarran fails to
plead what facts would show that he was actually
25

incompetent. Simply criticizing the evaluation done at
trial and alleging that the evaluation at trial was
inadequate according to the opinion of one expert does not
meet Albarrans burden of pleading clear and specific facts
that, if true, would show he was actually incompetent. See
Hyde, 950 So. 2d at 356 ([a] bare allegation that
Moreover, Albarran contends that at a minimum, his
trial counsel should have conducted further interviews and
administered further tests concerning competency. (Pet. at
47.) Yet he fails to specifically plead what information
he would have learned from further interviews or what the
results of the additional tests and assessments would have
been. Thus, because this claim is a bare allegation and
fails to plead a full factual basis for relief, it is
insufficiently pleaded and due to be dismissed. Ala. R.
Crim. P. 32.7(d).
Alternatively, this claim should be dismissed because
it is facially meritless and thus, fails to state a
material issue. Ala. R. Crim. P. 32.7(d). Albarran has
failed to plead a claim which would entitle him to relief
26

because, even assuming every allegation as true, he cannot
establish that he was prejudiced under Strickland. See
Bryant v. State, CR080405, 2011 WL 339585, at *6 (Ala.
Crim. App, February 4, 2011)([w]here a simple reading of
the petition for post-conviction relief shows that,
assuming every allegation of the petition to be true, it is
obviously without merit or is precluded, the circuit court
[may] summarily dismiss that petition.).
Specifically, Albarrans claim is meritless because,
even assuming his allegations as true, he has failed to
plead facts that could show that he was in fact incompetent
to stand trial. Rule 11.1 of the Alabama Rules of Criminal
Procedure states that [a] defendant is mentally
incompetent to stand trial or to be sentenced for an
offense if that defendant lacks sufficient present ability
to assist in his or her defense by consulting with counsel
with a reasonable degree of rational understanding of the
facts and the legal proceedings against the defendant.
Even assuming all of his allegations as true, Albarran has
failed to plead a claim that would show that he lacked the
ability to assist in his defense or consult with counsel
27

with a reasonable degree of understanding. Thus,
Albarrans claim is facially meritless.
Albarrans claim is limited to essentially restating
facts from the record. But even assuming the facts from
the record and his allegations as true, Albarran has failed
to plead any facts, evidence or potential reports or
testimony of any kind that, if true, would establish he was
actually incompetent. Moreover, Albarran has failed to
plead any new facts or allegations that, if true, would
establish that he was incompetent.
As the record indicates, Albarran was evaluated prior
to trial at Taylor Hardin Hospital and was found to be
competent to stand trial. (Supp. C. 840-841.) No expert
opined at trial that he was incompetent to stand trial, nor
has Albarran pleaded any additional expert testimony or
evidence that, even assumed as true, would show he was
incompetent. Although Albarran points to different facts
which he contends suggest that he might have been
incompetent, even assuming these facts as true, these facts
would not have risen to the level of incompetency.
At best, Albarran points to the fact that during his
evaluation at Taylor Hardin, he scored a 60% on one
28

competency evaluation test but later scored a 100% the next
day. (Pet. at 42; see R. 287-88.) Albarran then argues
that these facts suggest incongruities in his competency
evaluation from Taylor Hardin. But, even assuming these
facts as true, this does not establish a reasonable
probability that he would have been found incompetent had
his trial counsel moved for a pre-trial competency hearing.
The fact that Albarran had a lower score on one competency
test, even if true, does not demonstrate that he could not
assist or consult with counsel with a reasonable degree of
understanding. Ala. R. Crim. P. 11.1.
Likewise, even assuming as true Albarrans allegation
that Dr. Weinstein told trial counsel that he believed
Albarran to be incompetent and that a psychiatrist should
be retained does not show that Albarran was incompetent to
stand trial. (Pet. at 41.) Moreover, even assuming as
true the fact that Dr. Weinstein believed that Albarran was
confused at the time he spoke with him about the insanity
defense does not show how Albarran was incompetent. (Pet.
at 43.) Albarran has failed to plead how the fact a
defendant may not understand the nuances of a legal defense
something that would not be unusual for any defendant
29

facing a complicated trial shows that he generally was
unable to assist or consult with his counsel with a
reasonable degree of rational understanding of the facts
and the legal proceedings against the defendant. Ala. R.
Crim. P. 11.1.
None of Albarrans allegations, even assumed as true,
could establish that he was incompetent. Moreover, nothing
in the record supports such a finding. Thus, Albarrans
claim is meritless on its face and he cannot establish a
reasonable probability that the result of his trial would
have been different had his trial counsel moved for a pre-
trial competency hearing where, even assuming his
allegations as true, he cannot establish that he was
incompetent.
Likewise, this claim is without merit and fails to
state a material issue of fact or law that would entitle
him to any relief because, even assuming his allegations as
true, Albarran has failed to plead a claim that would
establish that his trial counsel was deficient. Ala. R.
Crim. P. 32.7(d); see Bryant, 2011 WL 339585, at *6
([w]here a simple reading of the petition for post-
conviction relief shows that, assuming every allegation of
30

the petition to be true, it is obviously without merit or
is precluded, the circuit court [may] summarily dismiss
that petition.).
Even assuming as true the allegation that trial counsel
did not request a pre-trial determination of competency,
trial counsel could not be deficient where there was no
basis for requesting a competency hearing at any point
during the trial. Here, the record does not indicate that
Albarran was incompetent and he further failed to plead any
facts that, even assumed as true, would establish that he
was in fact incompetent. See Dunaway v. State, CR-06-0996,
2009 WL 4980320, at *23 (Ala. Crim. App. December 18,
2009)(Counsel cannot be held ineffective for failing to
raise an issue that has no merit.).
Although trial counsel did not specifically request a
pre-trial competency hearing, the record demonstrates that
trial counsel thoroughly investigated Albarrans mental
health prior to trial. Furthermore, while trial counsel
could have moved for a pre-trial competency hearing, even
assuming his allegations as true, trial counsel could not
have been deficient for failing to take this step given
that the extensive examinations into Albarrans mental-
31

health did not reveal that he was incompetent. In fact,
the evidence in the record demonstrated that he was
competent.
Here, prior to trial, trial counsel retained Dr.
Ricardo Weinstein, a clinical, forensic, and
neuropsychologist from California to evaluate Albarran and
to determine his present cognitive functioning. (Supp.
C. 1004.) This evaluation consisted of 16 hours of face to
face contact with Albarran as well as the administration of
numerous tests and diagnostic tools. Id. at 1004-1005.
Trial counsel also retained a forensic psychiatrist
from California, Dr. J. Arturo Silva, who was fluent in
Spanish and conducted an extensive evaluation of Albarran.
(Supp. C. 706-748.) Neither of Albarrans experts opined
that Albarran was incompetent to stand trial. In fact, the
reports from both experts indicate that Albarran was aware
of his surroundings as well as the process to which he was
involved and was capable of communicating and participating
in his trial. Specifically, Dr. Silva indicated that
Albarran had a good understanding of the evaluation (Supp
C. 704) and Dr. Weinstein noted that Albarran related well
to the evaluator, he was open, disclosing and cooperative
32

and that he was verbally articulate and no speech or
language problems were identified. Id. at 1006-1007.
Finally, Albarran was also received a court-ordered
evaluation at Taylor Hardin Medical Facility pursuant
conducted by Dr. James F. Hooper who found that Albarran
was competent to stand trial. Id. at 841.
Although Albarran complains that his trial counsel did
not specifically request a competency evaluation in
addition to the extensive forensic psychological evaluation
conducted by Dr. Silva, he fails to plead what facts from
the mental evaluations conducted by his experts prior to
trial would have alerted trial counsel to conduct yet
another independent evaluation where a court-ordered
evaluation had already found that he was competent to stand
trial.
Notably, Albarran incorrectly suggests that Dr. Silva
suggested that he was incompetent to stand trial based on
cultural and language factors. (Pet. at 43.) This notion
is refuted by the record and, in fact, Dr. Silva noted that
cultural and language factors alone cannot result in
incompetency primarily because language and cultural
factors only result in the defendants ignorance of the
33

law. (Supp. C. 232.) Although Dr. Silva suggested that
these cultural factors, combined with Albarrans alleged
mental disorders, compromised his ability to think
rationally at the time of waived his Miranda warnings, Dr.
Silva never opined that Albarran was incompetent to stand
trial. Id.
Thus, even assuming his allegations as true, Albarrans
claim is facially meritless. As pleaded, Albarran has
failed to plead a claim that would establish that his trial
counsel was deficient or unreasonable for not moving for a
pre-trial competency hearing where there was no evidence in
the record which supported a finding that he was
incompetent and where Albarran has failed to plead any
additional facts that, if true, would show that he was
incompetent. Although Albarran argues that Dr. Weinsteins
testimony during the suppression hearing that Albarran was
likely incompetent at the time of his arrest supports his
claim, this fact, even accepted as true, does not suggest a
bona fide doubt as to his incompetence that obliged trial
counsel to move for a pre-trial competency hearing.
Notably, contrary to Albarrans contention, Dr.
Weinstein never testified or opined that Albarran was
34

incompetent to stand trial. Instead, Dr. Weinstein only
testified that Albarran was not capable or competent to
waive his Miranda rights at the time he was interviewed
based on the allegation that his rights were not clearly
explained and based on the allegation that Albarran did not
have a clear understanding of his rights due to cultural
differences. (R. 1810-1811.) But no expert ever
testified that Albarran actually was incompetent, nor has
Albarran pled any additional facts in his petition, that,
if true, would establish that he was incompetent to stand
trial.
As the record indicates, trial counsel engaged in a
complete investigation into Albarrans mental health. Yet,
as pleaded, Albarran has failed to identify any evidence or
further allegations that would show that he was
incompetent. Thus, even assuming his allegations as true,
Albarran has failed to plead a claim that would establish
that trial counsel was objectively unreasonable or
deficient for not pursuing further investigation or a pre-
trial hearing on his competency to stand trial. See
Broadnax v. State, CR101481, 2013 WL 598056, at *12 (Ala.
Crim. App. Feb. 15, 2013)( The reasonableness of the
35

investigation involves not only the quantum of evidence
already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate
further.)(quoting St. Aubin v. Quarterman, 470 F.3d 1096,
1101 (5th Cir. 2006)). Therefore, because this claim is
meritless on its face and no purpose would be served by any
further proceedings, this claim should be summarily
dismissed. Ala. R. Crim. P. 32.7(d).
Finally, to the extent that Albarran contends that his
trial counsel should have retained a bilingual expert to
specifically address his competence to stand trial, this
claim is insufficiently pleaded. Ala. R. Crim. P. 32.6(b).
Albarran utterly fails to plead the name of a specific
expert who his trial counsel should have retained to
evaluate his competency. Nor does Albarran specifically
plead any facts concerning what this unnamed exert would
have found, what this unnamed experts testimony would have
been, or that the unnamed expert even would have found
Albarran to be incompetent. Most importantly, Albarran
fails to plead specific facts concerning what evidence this
unnamed expert would have identified that would have
supported a finding that he was incompetent.
36

The Alabama Court of Criminal Appeals has held that a
petitioner fails to meet the specificity requirements of
Rule 32.6(b), Ala. R. Crim. P., when the petitioner fails
to identify an expert by name or plead the contents of that
expert's expected testimony. Lee v. State, 44 So. 3d
1145, 1166-1167 (Ala. Crim. App. 2009); see also Daniel v.
State, 86 So. 3d 405, 425-426 (Ala. Crim. App. 2011).
Simply the fact that Albarran pled that a mental-health
expert should have been retained does not meet the
requirements of Rule 32.6(b). Instead, Albarran was
required to specifically identify by name an expert who
could have testified at his trial and what that experts
testimony would have been. See Daniel, 86 So. 3d at 425-
426. Because he failed to meet this requirement, his claim
is insufficiently pleaded and should be dismissed. Ala. R.
Crim. P. 32.7(d).
for waiving change of venue and permitting the
trial court to conduct venue proceedings off
the record and outside Albarrans presence.

counsel was ineffective for waiving his change of venue,
for waiving venue outside his presence and without
consulting him, and for failing to conduct critical
37

proceedings relating to the change of venue issue on the
record. Albarran contends that his trial counsel was
ineffective in litigating the change of venue issue and
waiving venue in Madison County because the evidence of
pre-trial publicity established both presumptive prejudice
and actual prejudice. Because Albarrans claim contains
several sub-parts, the State will address each of these
sub-parts individually below.
a. The claim regarding change of venue.
First, in regard to the claim concerning the change of
venue, this entire claim should be dismissed because it is
facially without merit and fails to state a material issue
of fact or law. Ala. R. Crim. P. 32.7(d). Even assuming
his allegations as true, Albarran cannot establish that his
trial counsel was deficient under Strickland. Alabama
courts have consistently held that generally the decision
not to request a change of venue is not ineffective
assistance of counsel, but is rather a matter of trial
strategy. Yeomans v. State, CR100095, 2013 WL 1284361,
at *10 (Ala. Crim. App. March 29, 2013) (quoting Cox v.
State, 660 So. 2d 233, 235 (Ala. Crim. App. 1994)). Given
that whether to request a change of venue is a matter
38

reserved for the judgment of trial counsel, particularly
here where the record indicates that it was trial counsels
original intention to try the case in Madison County (R.
175), Albarran has failed to plead a material issue and his
claim should be dismissed. Ala. R. Crim. P. 32.7(d).
To the extent that Albarran alleges his trial counsel
was ineffective in waiving change of venue because he
established presumptive prejudice, this claim is facially
meritless and fails to state a material issue. Ala. R.
Crim. P. 32.7(d). Even assuming his allegations as true,
Albarran cannot establish that there is presumed
prejudice resulting from community saturation with such
prejudicial pretrial publicity that no impartial jury can
be selected. Hunt v. State, 642 So. 2d 999, 1043 (Ala.
Crim. App. 1993).
To establish presumptive prejudice, a defendant has the
burden of showing that the pretrial publicity is
sufficiently prejudicial and inflammatory and the
prejudicial pretrial publicity saturated the community
where the trials were held. Hunt, 642 So. 2d at 1043; see
also Lam Luong, 2013 WL 598119, at *8 (Ala. Crim. App. Feb.
15, 2013)(reversed by Luong v. State, No. 1121097, 2014 WL
39

983288 (Ala. Mar 14, 2014))(In rare cases, the community
is so predisposed that prejudice can be presumed and venue
must be transferred as a matter of law.)(quoting Sanchez
v. State, 142 P.3d 1134, 1139 (Wyo. 2006)).
A defendants burden to establish presumed prejudice is
extremely heavy one for [t]he presumptive prejudice
standard is rarely applicable, and is reserved for only
extreme situations. Id., quoting Coleman v. Kemp, 778
F.2d 1487, 1490 (11th Cir. 1985). Notably, the mere
existence of [e]xcess publicity does not automatically or
necessarily mean that the publicity was prejudicial.
Hunt, 642 So. 2d at 1043.
But here, even assuming all of Albarrans allegations
as true, his claim is without merit because he has failed
to plead a claim that, if true, could establish presumed
prejudice. See Bryant, 2011 WL 339585, at *6. As pleaded,
most of Albarrans allegations relate to the amount of
publicity, not to whether the publicity was overly
prejudicial or inflammatory. Thus, even as pleaded,
Albarran has failed to plead a claim that, if true, would
entitle him to relief.
40

For instance, even assuming as true Albarrans
allegations that local media covered four ceremonies
dedicated to Officer Goldens memory and the Huntsville
Times had approximately 50 articles about the case on its
website that ran during the trial, these allegations do not
establish that the community was so saturated with
prejudicial publicity to preclude a fair trial. Albarran
has failed to plead any facts that, if true, would show
that any of these news reports or articles were prejudicial
or represented anything other than factual accounts of the
crime or trial proceedings. See McCray v. State, 88 So. 3d
1, 70 (Ala. Crim. App. 2010)(to justify a presumption of
prejudice ..., the publicity must be both extensive and
sensational in nature. If the media coverage is factual as
opposed to inflammatory or sensational, this undermines any
claim for a presumption of prejudice.) (quoting Billups
v. State, 86 So. 3d 1032, 1069 (Ala. Crim. App. 2009)).
Simply the fact that broadcast news stories showed video of
the proceedings through courtroom windows or that a
reporter live-blogged about the trial, even if assumed as
true, would not establish that this publicity was
prejudicial. Likewise, even assuming as true Albarrans
41

allegations that numerous memorial services and ceremonies
were held and that Officer Goldens family publicly
accepted awards on his behalf, these allegations do not
establish that the extensive media coverage aroused
passions, outrage, and anger toward Albarran. See Luong,
2013 WL 598119, at *21.
Albarran has failed to plead any facts that, if true,
would indicate pervasive public outrage in the community or
extensive prejudicial new reports. Even assuming as true
that the media reported about Albarrans immigration
status, Albarran has failed to plead any facts that, if
true, would show that such reporting was excessive,
flamboyant, or outrageous. Further, a discussion of a
defendants immigration status does not rise to one of the
rare cases where prejudice is presumed. Notably, the
Alabama Supreme Court recently held that a circuit court
did not abuse its discretion in refusing to find presumed
prejudice and reversed the Court of Criminal Appeals
holding that presumed prejudice was present. Luong, 2014
WL 983288 at *8. Luong demonstrates the meritless nature
of Albarrans claim for a change of venue for the publicity
in Luong relayed much more potentially damaging details
42

about the defendant than the type of information alleged by
Albarran here. See Luong, 2013 WL 598119, at *21 (noting
numerous news reports discussing the defendants reputation
as a crack addict, the fact that the defendant had a
criminal history, and that the defendant had been arrested
and pled guilty to various drug charges in Georgia and
Mississippi). In any event, the mere fact that media
coverage references a defendant's criminal history, by
itself, is not sufficient to satisfy the presumed-prejudice
standard. McCray, 88 So. 3d at 70.
Moreover, Albarrans claim is meritless on its face as
many of his allegations do not specifically relate to his
case or the media coverage of the crime. For example, the
fact that the Alabama Hispanic Association filed a lawsuit
against the Huntsville Police Department in 2007 alleging
police misconduct in other cases, even if true, does not
show how pretrial publicity surrounding Albarrans trial
prejudicially saturated the community.
Finally, Albarrans allegation that prejudice must be
presumed based on the fact that the trial court originally
issued an order changing venue to Calhoun County is
facially meritless. After granting a change of venue, a
43

trial court retains discretion of that decision and the
change of venue order may be set aside, vacated, modified,
or annulled by the court making it. Ex parte Morrow, 66
So. 2d at 133. Simply the fact that the trial court
initially granted a change of venue does not mean that
Albarran could not receive a fair trial in Madison County
or that the community was saturated with prejudicial
publicity, particularly where trial counsels original
intent was to try the case in Madison County. (See R.
175)(we want to be in Huntsville.). As stated above,
Albarrans claim is simply facially meritless where, even
assuming his allegations as true, he has failed to plead
facts that could show that the pre-trial publicity in his
case was presumptively prejudicial.
To the extent that Albarran argues that there was
actual prejudice against him as a result of pre-trial
publicity, this claim should be summarily dismissed because
it is insufficiently pleaded. Ala. R. Crim. P. 32.6(b).
Albarran has utterly failed to plead any specific facts
that, if true, would show that one or more jurors who
decided the case entertained an opinion, before hearing the
evidence adduced at trial, that the defendant was guilty
44

and that the jurors could not have laid aside these
preformed opinions and rendered a verdict based on the
evidence presented in court. Hunt, 642 So. 2d at 1043.
Albarran has failed to plead any clear and specific
facts that, if true, would indicate that any juror had an
opinion prior to evidence being presented at trial. Nor
has Albarran pled any facts that, if true, would show that
any juror could not have laid aside a personal opinion and
rendered a verdict based on the evidence. Albarran has
failed to identify any specific jurors who he alleges were
actually prejudiced and has further failed to plead any
specific facts concerning what opinions these unnamed
jurors had. In fact, Albarran concedes that lack of
specificity of his claim by alleging that he will be able
to more fully demonstrate this after the opportunity to
fully develop the record through discovery and presentation
of evidence at an evidentiary hearing.
But Albarrans allegation is deficient for Rule
32.6(b) requires that the petition itself disclose the
facts relied upon in seeking relief. Boyd, 913 So. 2d at
1125-26. Albarran is not entitled to an evidentiary
hearing or discovery to discover facts. To the contrary,
45

Albarran is entitled to discovery and an evidentiary
hearing only if his claims are facially meritorious, which
requires a full disclosure of the factual basis of his
claim for relief. Ala. R. Crim. P. 32.6(b). Because he
failed to meet this pleading standard, this claim should be
b. The claim that trial counsel waived venue
outside his presence and without
consulting him.

both refuted by the record and facially without merit.
Ala. R. Crim. P. 32.7(d); see McNabb, 991 So. 2d at 320
(Thus, because this claim was clearly refuted by the
record, summary denial was proper pursuant to Rule 32.7(d),
Ala. R. Crim. P.). Albarrans claim that his trial
counsel was ineffective for waiving change of venue outside
of his presence is without merit on its face. Although
Albarran was not present during the hearing in which the
trial court vacated and set aside the January 31, 2008
order transferring the trial to Calhoun County, Albarran
specifically waived his right to be present at the change
of venue hearing by signing a written waiver. (C. 246.)
Thus, this claim is meritless on its face.
46

Furthermore, Albarrans claim that his trial counsel
did not consult him on waiving the change of venue to
Calhoun County is refuted by the record. Albarran
specifically waived venue for his trial in Madison County
and signed a written waiver in which he stated that he made
the decision upon advice of counsel. Id.
Finally, even assuming as true Albarrans allegation
that the April 4, 2008 written waiver applied to his prior
January 31, 2008 hearing and not the April 10, 2008
hearing, there was no error in Albarran not being present
for the hearing. The personal presence of the defendant is
not required at a change of venue hearing. Ala. Code 15-
2-20(c). Moreover, Albarrans presence at the April 10,
2008 hearing was waived. (R. 335.) Thus, because this
claim is refuted by the record and facially without merit,
it should be summarily dismissed. Ala. R. Crim. P.
32.7(d).
c. The claim that trial counsel conducted
critical proceedings relating to the
change of venue issue off the record.

This claim should be summarily dismissed because it
fails to state a material issue and is facially meritless.
Ala. R. Crim. P. 32.7(d). Albarran appears to allege that
47

his trial counsel was ineffective for conducting a hearing
on January 11, 2008 concerning his initial motion to change
venue off the record. Even assuming these facts as true,
this claim is meritless. Albarran could not have been
prejudiced because the trial court did not deny, but
granted, Albarrans motion. (R. 182.)
Albarrans allegation that his trial counsel was
ineffective for having discussions with the parties off the
record in the Judges chambers on April 9, 2008 concerning
the waiver of venue is also facially meritless. As noted
above, even accepting this allegation as true, Albarran
could not be prejudiced by the fact that his attorneys had
off the record discussions concerning the waiver of venue
because Albarran had already personally agreed to the
waiver of venue after consulting with his attorneys. (C.
246.) Even assuming his allegations as true, Albarran
simply could not be prejudiced by discussions that occurred
concerning a motion with which he agreed. Therefore,
because this claim is meritless on its face, it is due to
be dismissed. Ala. R. Crim. P. 32.7(d).
Finally, to the extent that Albarran argues that his
trial counsel was ineffective for failing to request a gag
48

order, for failing to request jury sequestration, and for
failing to request an instruction to the spectators in the
courtroom, this claim should be dismissed because it is
insufficiently pleaded. Ala. R. Crim. P. 32.6(b). To the
extent that Albarran is raising a cognizable claim, this
claim is nothing but a bare allegation. Albarran fails to
plead any specific facts concerning what arguments his
trial counsel should have made or why he was entitled to a
gag order or jury sequestration. Nor does Albarran plead
any authority in support of his claim. Although Albarran
alleges there was an outburst from the spectators after the
guilt phase verdict was read, he has failed to specifically
plead any facts that could show how he was specifically
prejudiced by any alleged outburst. Albarran has failed to
plead a sufficient factual basis that, if true, would show
how his trial counsel was deficient or how he was
prejudiced. Therefore, this claim should be dismissed.
for pleading not guilty by reason of mental
disease or defect.

counsel was ineffective for pleading not guilty by reason
49

of mental disease or defect. Albarran contends that
raising this insanity defense was ineffective because it
was based on the diagnosis of Dr. Silva, who opined that
Albarran suffered from an alcohol and cocaine induced
psychosis at the time of the offense. Albarran further
contends that an insanity defense based on a psychosis
brought on by voluntary intoxication was ineffective
because intoxication cannot support an insanity defense,
but can only negate the specific intent to commit capital
murder. Albarran argues that he was prejudiced by raising
the insanity defense in this fashion because the State was
able to reject the legality of this defense to the jury and
because pursuing this defense distracted the jurys focus
from a more sound defense of arguing that Albarrans
intoxication rendered him incapable of forming the specific
intent to commit capital murder.
without merit and thus, fails to state a material issue
upon which relief may be granted. Ala. R. Crim. P.
32.7(d). As an initial matter, Albarrans contention that
his trial counsel was ineffective for presenting an
insanity defense based on voluntary intoxication is both
50

meritless on its face and refuted by the record. Trial
counsels presentation of the insanity defense was not
based simply on voluntary intoxication. In fact, trial
counsel specifically told the jury that voluntary
intoxication is no defense and that [w]ere not
suggesting that voluntary intoxication is a defense to a
crime. Its not. (R. 3619.)
Instead, the insanity defense was based on two
different pieces of evidence. First and foremost, trial
counsel presented the testimony of Dr. J. Arturo Silva, who
opined that Albarran suffered from both an alcohol-induced
psychosis and a cocaine-induced psychosis which he
testified qualified as a severe mental disease or defect
under the DSM-IV-TR. (R. 2807-2808, 2924.) Dr. Silvas
diagnosis was based on the presence of delusions reported
by Albarran around the time of the offense that were
accentuated by his substance abuse. (Supp. C. 733-737.)
Second, trial counsels presentation of the insanity
defense also was based on the testimony presented by
Albarrans family members who described his strange
behaviors and moods, his family history of mental illness,
and his delusions concerning the devil. (R. 3617.)
51

Accordingly, because the record reflects that trial counsel
did not base the insanity defense simply on an argument
that Albarran was voluntary intoxicated, this claim is
meritless on its face.
Regardless, this claim is also without merit because
even accepting his allegations as true, Albarran has failed
to plead a claim that could establish that his trial
counsel was deficient under Strickland. See Bryant, 2011
WL 339585, at *6. Albarrans claim is an example of the
type of second-guessing and hindsight that Strickland
forecloses. See Strickland, 466 U.S. at 689 (It is all
too tempting for a defendant to second-guess counsel's
assistance after conviction or adverse sentence, and it is
all too easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a particular
act or omission of counsel was unreasonable.). Capital
Rule 32 petitioners normally allege that their trial
counsel was ineffective for not raising every possible
defense at trial. Here, Albarran now argues the opposite,
contending that his trial counsel should not have pursued
an insanity defense, but should have only argued that he
52

did not have the specific intent to kill a defense he now
argues was the only lawful defense. (Pet. at 75.)
But, even accepting his allegations as true, this
allegation on its face does not plead a claim that could
show that trial counsels performance did not fall within
the wide range of reasonable professional assistance.
Strickland, 466 U.S. at 689. Trial counsel faced a
daunting task of representing Albarran in the face of
overwhelming evidence of guilt. Multiple eyewitnesses
observed at least some portion of the murder, including
graphic details of Albarran shooting Officer Golden while
he was defenseless on the ground. Albarran v. State, 96
So. 3d 131, 145-146 (Ala. Crim. App. 2011). Several
eyewitness identified Albarran as the shooter when he was
apprehended by law enforcement at the scene of the crime.
Id.
In the face of this strong evidence, the record
evidences that trial counsel chose to present the jury with
multiple arguments against a capital-murder conviction,
namely, among other things, that the prosecution had not
met their burden of proof, that the prosecution failed to
establish that Albarran specifically intended to kill
53

Officer Golden based on his intoxication and based on the
physical evidence and testimony in the case, and that the
defense had proven that Albarran was legally insane at the
time of the offense. (R. 3564-3624.) Trial counsel
pursued this strategy zealously and thoroughly,
particularly in regard to the presentation of the insanity
defense. Trial counsel spent a considerable amount of
time, effort, and resources to locate two mental-health
experts from California, who had the ability to relate to
Albarran culturally, as well as numerous family members,
many of whom resided in another country, in support of the
insanity defense.
Simply the fact that trial counsels presentation of a
not guilty by reason of mental disease or defect defense -
while at the same time arguing that the State could not
prove intent - ultimately was unsuccessful does not mean
that trial counsels performance was deficient. See Davis
v. State, 9 So. 3d 539, 550 (Ala. Crim. App. 2008)(The
fact that a particular defense was unsuccessful does not
prove ineffective assistance of counsel.) (quoting
Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.
2000)). Thus, on its face, Albarrans claim is meritless.
54

Trial counsels presentation of the insanity defense
falls within the wide range of reasonable professional
assistance. Strickland, 466 U.S. at 689. Certainly, it
is not unreasonable to present multiple arguments and
theories to the jury, even where one theory may arguably
stronger than another, particularly in this case where
trial counsel presented a qualified mental-health expert
who did opine that a substance-induced psychosis qualified
as a severe mental disease or defect under the DSM-IV-TR.
Therefore, even assuming all of Albarrans allegations as
true, his claim is without merit because he has failed to
plead a claim that, if true, would establish that his trial
counsel was deficient under Strickland.
This claim should also be dismissed because Albarrans
allegation of prejudice is facially meritless. Even
accepting all of his allegations as true, Albarran has
failed to plead a claim that could establish that there is
a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt. Id. at 695. As pleaded, Albarrans claim of
prejudice is facially meritless because of the overwhelming
evidence of guilt in this case. In other words, even if
55

counsel had not presented evidence in support of a plea of
not guilty by reason of mental disease or defect, there was
no reasonable probability that the jury would have found
reasonable doubt respecting guilt.
Even assuming his allegations as true, withdrawing the
insanity defense would not have led to any probability, let
alone a reasonable one, that Albarran would not have been
found guilty of capital murder. Moreover, even if trial
counsel had decided not to present an insanity defense,
this would have had no effect on the overwhelming evidence
of guilt presented by the prosecution. At best, such a
decision would have merely removed one defense from the
jurys consideration of which Albarran bore the burden of
proof. See Ala. Code 13A-3-1.
As noted above, the murder of Officer Golden was
gruesome and the evidence against Albarran was strong.
Multiple people witnessed Albarran not only shoot and kill
Officer Golden, but particularly graphic details of the
murder where Albarran shot Golden multiple times as he lay
on the ground begging for his life. For instance, Charles
Ward testified that even with Officer Golden on the ground,
Albarran picked up a handgun and discharged the magazine
56

at Officer Golden. (R. 2126.) Tanisha Thomas testified
that she saw Albarran shooting Officer Golden, that Golden
fell to the ground and yelled Wait!, yet Albarran kept
shooting. Albarran, 96 So. 3d at 146. William Thomas also
testified that Albarran shot Officer Golden and that after
the officer went down, Albarran shot him and then walked up
to the officer and shot him again. Id.
Albarrans claim is simply meritless. Even assuming as
true Albarrans claim that trial counsels presentation of
the insanity defense was legally and factually unsound,
there is no reasonable probability the result would have
been different. Albarran was convicted because of the
overwhelming evidence of guilt, not because of an
unsuccessful plea of insanity. Albarrans arguments to the
contrary are unavailing.
For instance, Albarrans contention that the
presentation of an insanity defense undermined and
compromised his argument that his intoxication negated the
specific intent to commit capital murder (Pet. at 75)
ignores the fact that this argument was still presented to
and, rejected by, the jury. Trial counsel specifically
argued that, aside from the insanity defense, the
57

prosecution had failed to prove that Albarran specifically
intended to kill Officer Golden based on the evidence that
he had used alcohol and drugs. (R. 3615.) Even assuming
as true Albarrans allegation that the jury could have been
confused between the insanity defense and the argument that
Albarrans intoxication negated his specific intent to
kill, there is no probability whatsoever that the result of
the guilt phase would have been different based on the
overwhelming evidence of guilt.
Moreover, although Albarran contends that trial counsel
should have called other witnesses to support his claim
that he could not form the specific intent to kill based on
his intoxication, even if true, Albarran has failed to
plead a claim that could show prejudice. While Albarran
lists the names of two witnesses who would testify about
his general use of drugs, he fails to specifically plead
that these two witnesses observed, or would have been able
to testify about, the specific substances, if any, that
Albarran used on the day of the offense. (Pet. at 72-73.)
Likewise, Albarrans arguments that the presentation of
the insanity defense opened the door for privileged
statements to Dr. Hooper to be admitted, opened the door
58

for the State to admit prior bad acts, and resulted in the
presentation of irrelevant evidence are facially without
merit. Even assuming these facts as true, there is no
reasonable probability that, but for these alleged errors,
the jury would have found reasonable doubt respecting
guilt. Strickland, 466 U.S. at 695. The evidence of
Albarrans guilt was overwhelming. Moreover, the jury did
not convict Albarran because of statements made to Dr.
Hooper or any prior bad acts, but based on this
overwhelming evidence of guilt.
Moreover, even assuming as true Albarrans contention
that the presentation of the insanity defense opened the
door to certain evidence or resulted in irrelevant evidence
being presented, this could not render the result of the
trial fundamentally unfair or unreliable. Rhode v. Hall,
582 F.3d 1273, 1280 (11th Cir. 2009). Even assuming his
allegations as true, the States rebuttal to the insanity
defense did not lead to the introduction of any egregious
or prejudicial evidence, particularly when compared to the
lawful, admissible evidence of Albarrans guilt that was
already presented. Nor could Albarrans trial have been
rendered fundamentally unfair simply because the jury heard
59

evidence which Albarran now contends was, at worst,
irrelevant in support of the insanity defense.
Accordingly, based on the overwhelming evidence of guilt,
even assuming all of Albarrans allegations as true, he has
failed to plead a claim that could show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. Strickland, 466 U.S. at 694.
Therefore, because Albarran has failed to state a facially
meritorious claim and no purpose would be served by any
further proceedings, this claim should be dismissed. Ala.
R. Crim. P. 32.7(d).
during jury selection.

In paragraphs 169-204, Albarran raises numerous sub-
claims relating to his trial counsels performance during
jury selection. Accordingly, the State responds to each of
these allegations individually below.
a. The claim that trial counsel failed to
seek additional time to conduct voir dire
and object to unreasonable time
restrictions.

counsel was ineffective for failing to secure adequate time
60

to review juror questionnaires and to question potential
jurors. Albarran also alleges that his trial counsel
should have objected to the amount of time provided by the
trial court to review the questionnaires. As a result,
Albarran argues that his trial counsel was forced to use
peremptory strikes to dismiss jurors who should have been
struck for cause. Finally, Albarran complains that certain
jurors were left on the jury that had prior knowledge about
the case.
insufficiently pleaded. Ala. R. Crim. P. 32.6(b). This
claim is nothing but a bare allegation. Although Albarran
contends that the trial court unreasonably placed time
restrictions on voir dire, Albarran fails to specifically
plead how much time the trial court should have provided
for voir dire or how much trial counsel should have
requested. Likewise, although Albarran alleges certain
jurors should have been struck for cause, Albarran utterly
fails specifically plead facts that, if true, would show
that these jurors met the standard for qualifying for a
challenge for cause. See Washington v. State, 95 So. 3d
26, 38 (Ala. Crim. App. 2012)(holding that the circuit
61

court correctly summarily dismissed this claim because
Washington failed to identify specific jurors by name
under Rule 32.6(b).)
In Alabama, the standard for striking a potential
juror for cause because of the juror's bias requires that
the juror have a fixed opinion concerning the defendant's
guilt that would interfere with his ability to render a
fair and unbiased verdict. Phillips v. State, 65 So. 3d
971, 1009 (Ala. Crim. App. 2010). Moreover, [o]nly when a
prospective juror's testimony indicates a bias or prejudice
so fixed or deep-seated that that person cannot be
impartial and objective must a challenge for cause be
granted by the trial court. Ex parte Land, 678 So. 2d 224,
240 (Ala. 1996). Albarran fails to plead any facts or any
testimony from the jurors identified in his petition that,
if true, would show the jurors had a fixed opinion or were
unable to render a fair verdict.
Instead, Albarran merely provides a list of
unidentified jurors with generalized statements about each
juror without providing any record citations to identify
either the jurors or facts about the jurors. Thus, based
on Albarrans deficient pleading, it is impossible to
62

determine whether trial counsel did or did not move for
cause to strike the unidentified jurors listed in his
petition. Accordingly, because of Albarrans failure to
plead the full factual basis for his claim, this Court
cannot determine whether Albarran is entitled to relief and
his claim should be dismissed. See Washington, 95 So. 3d
at 38 (If, assuming every factual allegation in a Rule 32
petition to be true, a court cannot determine whether the
petitioner is entitled to relief, the petitioner has not
satisfied the burden of pleading under Rule 32.3 and Rule
32.6(b).)(quoting Hyde v. State, 950 So. 2d 344, 356 (Ala.
Crim. App. 2006)).
Albarran also failed to specifically plead facts that,
if true, would establish that his trial counsel was
deficient under Strickland. Ala. R. Crim. P. 32.6(b).
Albarran has failed to plead any specific facts that, if
true, would show that his trial counsel actually needed
more time during voir dire. Albarran fails to plead that
his trial counsel actually was unable to review all of the
juror questionnaires.
Furthermore, Albarran fails to plead specific facts
concerning what additional questions his trial counsel
63

should have asked during voir dire if counsel had more time
that would have resulted in more jurors struck for cause.
Notably, trial counsel did move to strike multiple jurors
for cause which the trial court denied. See Albarran, 96
So. 3d at 159-162. Albarran has failed to specifically
plead in his petition any substantive action his trial
counsel could have done differently other than the bare
allegation that his trial counsel simply should have asked
for more time. Finally, Albarran also has failed to plead
facts that, if true, would show that trial counsel did not
have a strategic reason for how counsel conducted voir
dire, how counsel questioned certain jurors, or how counsel
decided to facilitate strikes for cause and peremptory
strikes. Given that an attorney's actions during voir
dire are considered to be matters of trial strategy, which
cannot be the basis of an ineffective assistance claim
unless counsel's decision is ... so ill chosen that it
permeates the entire trial with obvious unfairness,
Washington, 95 So. 3d at 64 (citations omitted), this
failure alone renders this claim insufficiently pleaded and
due to be dismissed.
64

Finally, Albarran has failed to specifically plead
facts that, if true, would establish that he was prejudiced
under Strickland. Ala. R. Crim. P. 32.6(b). Albarrans
claim is nothing but a conclusory, speculative allegation.
Albarran completely fails to plead any facts that, if true,
would show what additional information he would have
learned or what additional evidence could have been
developed had his counsel requested more time for voir
dire.
More importantly, Albarran has failed to specifically
plead any facts that, if true, would establish that he was
entitled to additional strikes of jurors for cause. The
test for determining whether a strike rises to the level of
a challenge for cause is whether a juror can set aside
their opinions and try the case fairly and impartially,
according to the law and the evidence. Sneed v. State, 1
So. 3d 104, 136 (Ala. Crim. App. 2007)(citations omitted).
While he has listed several unidentified jurors, Albarran
utterly has failed to plead any specific facts that, if
true, would show that these unnamed jurors could not set
aside their opinions and try the case fairly and
impartially. Moreover, merely alleging that many of the
65

jurors who were empanelled and tried his case had prior
knowledge of the case does not constitute a sufficiently
pleaded claim because [a] juror need not be excused merely
because [the juror] knows something of the case to be tried
or because [the juror] has formed some opinions regarding
it. Thompson v. State, CR050073, 2012 WL 520873, at *15
(Ala. Crim. App. Feb. 17, 2012)(internal citations
omitted). Therefore, because this entire claim is
insufficiently pleaded, it is due to be dismissed. Ala. R.
Crim. P. 32.7(d).
Alternatively, this claim should be summarily dismissed
because it is without merit and fails to state a material
issue. Ala. R. Crim. P. 32.7(d). Albarrans claim that
his trial counsel was ineffective because counsel had to
use peremptory strikes on jurors who should have been
struck for cause as a result of not having adequate time
during voir dire is facially meritless. For, the Alabama
Supreme Court has held that the failure to remove a juror
for cause is harmless when that juror is removed by the use
of a peremptory strike. Pace v. State, 904 So. 2d 331,
341 (Ala. Crim. App. 2003). Therefore, because Albarrans
66

substantive claim is meritless on its face, this claim
should be summarily dismissed. Ala. R. Crim. P. 32.7(d).
b. The claim that trial counsel failed to
question jurors on exposure to pre-trial
publicity and other issues.

counsel failed to individually question any jurors on their
exposure to pre-trial publicity, crime-victim status, and
relationships to law enforcement.
Albarran has failed to specifically plead any facts that,
deficient or that he was prejudiced under Strickland. For
example, Albarran fails to specifically plead or identify
the names of the jurors that he contends should have been
individually questioned. See Washington, 95 So. 3d at 64
(affirming summary dismissal of claim of ineffective
assistance of counsel during voir dire under Rule 32.6(b)
where petitioner failed to identify specific jurors by
name.) Nor does Albarran plead any specific facts
concerning what details about the case the potential jurors
were aware of or what publicity the potential jurors had
67

been exposed to that would have necessitated individual
questioning.
Although he generically lists topics such as pre-trial
publicity, crime-victim status, and ties to law
enforcement, Albarran also fails to plead what specific
questions his trial counsel should have asked during voir
dire. More importantly, Albarran fails to plead any facts
concerning what specific information he would have learned
had his trial counsel conducted individual questioning.
Nor does he plead how this unidentified information would
have led to a challenge for cause or a peremptory strike.
Similarly, while Albarran contends that at least two
jurors on the jury panel had either donated to a law
enforcement organization or had close relatives in law
enforcement, Albarran completely fails to plead a
sufficient factual basis that, if true, would show that he
was entitled to a challenge for cause for these jurors or
that it would have been part of trial counsels strategy to
exercise a peremptory strike against these two jurors.
Accordingly, because this claim is nothing but a bare
allegation and no purpose would be served by any further
68

proceedings, this claim should be dismissed. Ala. R. Crim.
P. 32.7(d).
To the extent that Albarran contends that his trial
counsel was ineffective for failing to discover in voir
dire that a juror was the victim of a domestic incident,
this claim should also be summarily dismissed because it is
true, would show that his trial counsel was deficient or
that he was prejudiced or entitled to any relief. Albarran
raised the substantive aspect of this claim on direct
appeal, asserting that the juror committed misconduct by
failing to disclose during voir dire that her husband had
assaulted her approximately 19 months prior to trial. See
Albarran, 96 So. 3d at 193-197. The Court of Criminal
Appeals held that Albarran failed to establish that he
might have been prejudiced. Id. That court specifically
found that the record indicates that defense counsel were
not concerned with prospective jurors' prior victimizations
because counsel did not strike a number of other potential
jurors who had been victims of violent crimes. Id. at
196.
69

Albarran has failed to specifically plead any
additional facts that, if true, would show how he was
prejudiced by not pursing individual voir dire of this
juror. Nor does Albarran specifically plead what
additional information or details about this situation he
would have learned or how this unidentified information
would have necessitated a challenge for cause. Albarran
also fails to plead what specific questions his trial
counsel would have asked or whether striking this juror
peremptorily would have been consistent with trial
counsels strategy given the record reflects that several
jurors served on the jury despite being victims of crime.
Id. at 196. Finally, Albarran does not specifically plead
which juror should have been left on the jury in the place
of this particular juror. Accordingly, because this claim
is insufficiently pleaded, it is due to be dismissed. Ala.
R. Crim. P. 32.7(d).
c. The claim that trial counsel inserted
Albarrans immigration status into voir
dire.

counsel was ineffective for inserting the issue of his
immigration status in the juror questionnaire.
70

Albarran has failed to plead clear and specific facts that,
deficient or that he was prejudiced under Strickland.
Generally, an attorney's actions during voir dire are
considered to be matters of trial strategy, which cannot be
the basis of an ineffective assistance claim unless
counsel's decision is ... so ill chosen that it permeates
the entire trial with obvious unfairness. Washington, 95
So. 3d at 64 (citations omitted). It is reasonable that
trial counsel would have strategic reasons for wanting to
know potential jurors views on immigration given the fact
that Albarran was a Mexican national and evidence of his
nationality and culture were presented during trial. As
trial counsel admitted, evidence about Albarrans Mexican
heritage and culture was part of the evidence trial counsel
expected to present during trial. (R. 868.)
But Albarran has failed to specifically plead any facts
that, if true, would show that trial counsels inclusion of
certain questions on the jury questionnaire was not part of
counsels overall voir dire strategy. Albarran has also
71

failed to plead any specific facts that, if true, would
show that no competent counsel would have included
questions about his immigration status on a jury
questionnaire given the unique circumstances of this case.
Moreover, Albarran has failed to specifically plead how
he was prejudiced by the inclusion of these questions on
the jury questionnaire. Albarrans contention that he was
treated differently biased as a result of his immigration
status is nothing but unfounded speculation. Albarran
completely has failed to plead any specific facts that, if
true, would show how he was actually treated differently to
similarly situated individuals. While he contends that
his trial counsels ineffectiveness resulted in prejudicial
evidence being admitted against him, he fails to
specifically plead what specific evidence he contends was
improperly admitted. Albarrans entire claim consists of
nothing but bare allegations devoid of any specific factual
basis concerning prejudice under Strickland. Accordingly,
because [a] bare allegation that prejudice occurred
without specific facts indicating how the petitioner was
prejudiced is not sufficient, Hyde, 950 So. 2d at 356,
72

this entire claim is insufficiently pleaded and should be
d. The claim that trial counsel inserted
other prejudicial evidence into voir
dire.

counsel was ineffective for presenting false and misleading
information during voir dire to prospective jurors about
what counsel expected the evidence to show.
Albarrans claim is nothing but a bare allegation devoid of
any specific factual basis. Within this claim, Albarran
merely has searched the transcript of voir dire and
presented a laundry list of comments by trial counsel,
without placing the comments in context, which he now finds
objectionable. But this bare, conclusory pleading does not
constitute a sufficiently pleaded claim, for an attorney
looking back at a trial transcript can always find
instances where objections could have been made or
statements and arguments could have been phrased
differently. See Tarver v. State, 629 So. 2d 14, 19 (Ala.
Crim. App. 1993)(An ineffectiveness of counsel claim does
73

not lend itself to a search of the record to pick the
instances in which an objection could have been made.).
Albarran has also failed to specifically plead facts
that, if true, would show that his trial counsel was
deficient under Strickland. As noted above, generally, an
attorney's actions during voir dire are considered to be
matters of trial strategy, which cannot be the basis of an
ineffective assistance claim unless counsel's decision is
... so ill chosen that it permeates the entire trial with
obvious unfairness. Washington, 95 So. 3d at 64
(citations omitted). Albarran has failed to plead any
specific facts that, if true, would show that no competent
counsel would have conducted voir dire in the manner in
which trial counsel did. Contrary to Albarrans
allegations, trial counsel would have had a reasonable,
strategic purpose for informing the jury about what they
expected the evidence to show and to gauge the jury
venires impressions or thoughts on this potential
evidence. Likewise, trial counsel would have had a
strategic reason to inquire from jurors what they had heard
about the case, even if it meant that some of the details
would be shared with the jury venire, in order to draw out
74

information to aid in determining which jurors to strike.
true, would show that this approach was objectively
unreasonable.
Moreover, many of the laundry list of comments Albarran
contends were prejudicial were not comments made by trial
counsel, but were statements made by potential jurors
during voir dire in response to questions from either the
trial court or defense counsel. (Pet. at 92.) For
example, Albarran complains that comments were made about a
police officer getting killed at a Mexican Restaurant, that
Officer Goldens widow went to a memorial service in
Washington, D.C., and that Officer Goldens gun
malfunctioned and that he was shot while going down. But
all of these comments were made by jurors, not trial
counsel, in the course of voir dire. (R. 923-928.)
Albarran has failed to plead how trial counsel could be
deficient for the comments from jurors, in response to
questions designed to uncover what the jury panel had heard
about the case.
Finally, Albarran has also failed to specifically plead
how he was prejudiced under Strickland. Albarran simply
75

has listed comments that he contends were prejudicial
without pleading any specific facts about why these
comments were prejudicial or how these comments rendered
his trial fundamentally unfair. For instance, Albarran
complains that he was prejudiced because his trial counsel
stated in voir dire that two mental-health experts would
testify, when only one defense expert testified during the
guilt phase. (Pet. at 91.) But Albarran has failed to
specifically plead facts that, if true, would show how this
passing comment would have made any difference in the
outcome of his trial, particularly where the trial court
repeatedly instructed the jury that arguments made by
counsel were not evidence and that the jury could base its
verdict only the evidence presented during the trial. (R.
1864-65, 3670-3671.)
Furthermore, Albarran has failed to specifically plead
facts that, if true, would show that he was prejudiced
where many of the comments during voir dire that he
contends were prejudicial were consistent with the evidence
presented during trial. For example, comments about
Officer Goldens gun malfunctioning, that he begged for
mercy, that he was shot after going down were consistent
76

with the testimony and evidence presented from multiple
witnesses, including eyewitnesses, during trial. See
Albarran, 96 So. 3d at 145-146. Accordingly, Albarran has
failed to meet his burden of pleading clear and specific
facts concerning prejudice under Strickland. Therefore,
because of this pleading deficiency, as well as the other
deficiencies noted above, this claim is due to be
e. The claim that trial counsel failed to
rehabilitate qualified jurors.

counsel failed to rehabilitate jurors who were struck for
cause.
plead any factual basis in support of his claim. For
example, Albarran asserts in a conclusory fashion that
Juror 78 was removed for cause although he contends she was
competent to sit on the jury. (Pet. at 69.) Yet Albarran
completely fails to plead any specific facts that, if true,
would show why Juror 78 was competent to serve on the jury,
what statements Juror 78 made or what other information was
77

available to show she could have been impartial, or what
actions trial counsel could have taken to rehabilitate
Juror 78.
Albarran also complains that trial counsel failed to
rehabilitate other jurors and agreed to certain jurors
being removed. However, Albarran fails to specifically
plead who these jurors were or what trial counsel
specifically should have done or what questions trial
counsel could have asked to rehabilitate these unidentified
jurors. See Washington, 95 So. 3d at 64 (holding that the
circuit court properly dismissed a claim under Rule 32.6(b)
where the petitioner failed to identify specific jurors by
name; he failed to plead what should have been done during
voir dire examination; and he failed to plead how he was
prejudiced by counsel's performance during the voir dire
examination.) Nor does Albarran plead any specific facts
that, if true, would show that these unidentified jurors
did not meet the legal criteria for sustaining a challenge
for cause. Accordingly, Albarran has failed to
specifically plead any facts that, if true, would show that
his trial counsel was deficient or that he was prejudiced.
78

Therefore, because this claim is insufficiently pleaded, it
f. The claim that trial counsel failed to
make a complete record of voir dire
proceedings.

counsel was ineffective for failing to create a record of
the jurors who called the trial courts office prior to
trial to be excused from jury service. Albarran also
alleges that trial counsel failed to follow up on instances
of prospective juror misconduct and make a record of the
alleged prejudice from this misconduct.
In regard to the claim concerning the failure to make a
record of jurors excuses from jury service, this claim
should be summarily dismissed because it is insufficiently
pleaded. Ala. R. Crim. P. 32.6(b). Albarran has failed to
plead basic facts necessary to support this speculative
allegation. As pleaded, Albarran has not pled a sufficient
factual basis to determine whether he has even asserted a
facially meritorious claim. For example, Albarran has
failed to specifically plead the names of the jurors who
allegedly were excused by the trial court. Albarran also
failed to plead any specific facts that, if true, would
79

show what alleged communications the trial court had with
the excused jurors, let alone whether any of these
communications were material. Most importantly, Albarran
completely fails to plead any specific facts that, if true,
would show how he was prejudiced by the fact that there was
no record of these communications or that the certain
jurors were excused. Albarran has failed to plead any
facts that, if true, would demonstrate a reasonable
probability that the outcome of his trial would have
different had such proceedings been recorded. Accordingly,
because this conclusory allegation is insufficiently
pleaded, it should be summarily dismissed. Ala. R. Crim.
P. 32.7(d).
it is facially without merit and fails to state a material
issue. Ala. R. Crim. P. 32.7(d). Albarrans claim that
his right to be present and right to have proceedings
recorded is meritless. Even assuming as true that a
defendant has a right to be present during jury selection,
that right was not violated because the trial courts
excusal of potential jurors did not constitute, and did not
involve, jury selection. Albarrans allegation does not
80

involve formal voir dire, strikes for cause or peremptory
strikes, but excusals allowed by the trial court prior to
the beginning of formal jury selection.
A trial court may excuse a potential juror from jury
service under certain circumstances, including but not
limited to, undue or extreme physical or financial
hardship. Ala. Code 12-16-63. Relevant here, a trial
court has authority to unilaterally excuse potential jurors
prior to the formal start of jury selection. See Ala. Code
12-16-145 (Prior to the date on which a prospective
juror has been summoned to appear, the presiding circuit
judge, or a court official designated by him, shall have
the authority to disqualify the prospective juror or to
excuse or postpone his service to any future date, not
withstanding the provisions of any other law.). This
statutory authority does not require, nor has Albarran
cited anything to the contrary, a trial court to record or
transcribe these proceedings involving the preliminary
excusal of potential jurors.
Here, the trial courts discussions with potential
juror excuses occurred prior to the beginning of trial, let
alone jury selection. This conduct was proper under
81

Alabama law and consistent with a trial courts authority
to excuse potential jurors from service. Thus, even
assuming his allegations as true, Albarrans claim is
without merit. See Dunaway, 2009 WL 4980320, at *23
(Counsel cannot be held ineffective for failing to raise
an issue that has no merit.). Furthermore, even if the
trial court had discussions with potential jurors prior to
trial, the record reflects that the trial court
communicated again with each of these jurors on the record
and in the presence of counsel prior to make a final
determination on which jurors should be excused. (R. 650-
690.) Thus, for an additional reason, because this claim
is meritless, it should be dismissed. Ala. R. Crim. P.
32.7(d).
In regard to Albarrans claim that his trial counsel
failed to follow up on prospective juror misconduct, this
claim should be dismissed because it is insufficiently
pleaded. Ala. R. Crim. P. 32.6(b). Albarrans claim is a
bare allegation. Albarran has failed to plead any facts
that, if true, would show that any juror who served on his
jury was impacted or affected by these comments and how the
jury was specifically prejudiced by these comments. Nor
82

has he pleaded any specific facts that, if true, would
articulate how the entire jury panel was prejudiced by
these isolated comments. Critically, Albarran has failed
to plead specific facts that, if true, would show that any
juror who overheard these comments was unable to render a
fair and impartial verdict.
Moreover, Albarran has failed to plead what specific
actions trial counsel could have undertaken to more fully
investigate these instances. Albarran fails to plead what
specific questions trial counsel should have asked or what
specific information trial counsel could have learned that
would have shown that he could not receive a fair trial.
Albarran simply has failed to plead any specific facts
that, if true, would show that his trial counsel was
deficient or that he was prejudiced under Strickland.
Therefore, this claim should be dismissed. Ala. R. Crim.
P. 32.7(d).
7. Albarrans claim that trial counsel was
ineffective for failing to object to
incompetent trial court interpretation.

counsel failed to object to the trial courts appointment
of incompetent interpreters during his trial. Within this
83

claim, Albarran again raises several sub-parts which will
be addressed individually below:
a. The claim that Albarrans interpreter,
Patrick Castle, was incompetent.

In paragraphs 210-212, Albarran contends that his
defense interpreter, Patrick Castle, was incompetent.
Albarrans contention that Castle was incompetent is
nothing but a bare allegation. Albarran fails to plead any
facts that, if true, would show why Castle was unqualified
or what qualities a qualified interpreter would have
possessed that Castle did not possess. Moreover, although
Albarran contends Castle failed to interpret word for
word and omitted key evidence and testimony (Pet. at
98), Albarran fails to specifically plead what testimony
Castle did not interpret correctly or identify what
testimony was omitted by Castle.
Albarran completely fails to specifically plead what
evidence or testimony he was unable to learn or discover
during trial. Nor does Albarran specifically plead how he
was unable to participate in his trial or what specific
actions he was unable to undertake as a result of Castles
84

alleged incompetent interpretation. Finally, Albarran
fails to specifically any facts that, if true, would show
how his trial would have been any different had the
interpretation been more complete. Therefore, because
Albarran has failed to plead specific facts that, if true,
would show that his trial counsel was deficient and that he
was prejudiced under Strickland, this claim should be
b. The claim that the trial courts
interpreter, Dara Fernandez, was
incompetent.

In paragraphs 213-229, Albarran contends that the trial
courts appointed interpreter, Dara Fernandez, was
incompetent. Albarran further contends that this resulted
in interruptions during testimony and flawed
interpretations.
claim is a bare allegation. Notably, as Albarran admits in
his petition, Alabama did not have any procedures for
certifying translators and as the Court of Criminal Appeals
noted, Alabama has no statute that requires that a court
interpreter be certified, Albarran 96 So. 3d at 181.
85

Moreover, Albarran has failed to cite to any law or
controlling authority in Alabama concerning interpreters
that was violated. Thus, Albarran fails to specifically
plead how Fernandez was unqualified to interpret in his
trial. Albarran also fails to specifically plead the name
of any other interpreter who he contends was qualified and
available to interpret during his trial.
Albarran also fails to specifically plead how he was
prejudiced. Although Albarran contends that he was
prejudiced by several interruptions that took place during
the interpretation of certain testimony, he fails to
specifically plead any facts that, if true, would show how
there was a reasonable probability that the outcome of his
trial would have been different had these interruptions
taken place. Certainly, a certain amount of interruptions
and delay are inherent in translating a large amount of
testimony from one language to another. Albarran has
failed to plead any clear and specific facts that, if true,
would show why any interruptions in his case were outside
the norm or prejudicial in any way. Notably, Albarran only
identifies one segment of testimony consisting of
interruptions which he contends were problematic, despite
86

the voluminous amount of testimony that was translated in
this case.
Most importantly, even assuming that there were
interruptions at various points during the testimony,
Albarran fails to plead any specific facts that, if true,
would show how he was prejudiced or how his defense was
compromised other than pure speculation and conjecture.
Albarran simply had failed to plead how there was a
reasonable probability that the outcome of his trial would
have been different if a more qualified interpreter would
have been utilized. Albarran fails to plead how a
different interpreter would have had any effect on the
overwhelming evidence presented by the prosecution
concerning his guilt, let alone how the presentation of his
case was specifically affected.
Finally, Albarran contends that some of the testimony
that was interpreted was incoherent but he fails to
specifically plead what testimony was incoherent or how it
was incoherent. In fact, Albarrans claim is
insufficiently pleaded because, as he admits, it is
impossible to know whether the translation of any testimony
87

was incompetent because there is no record of the Spanish
language testimony. (Pet. at 106.)
Thus, Albarran completely failed to plead a sufficient
factual basis that would entitle him to relief. He has
failed to plead specific facts that, if true, would show
that his trial counsel was deficient and that he was
prejudiced under Strickland. Therefore, because this claim
is insufficiently pleaded, it should be dismissed. Ala. R.
Crim. P. 32.7(d).
c. The claim that the official interpreters
last-minute translation and transcription
of key evidence was improper.

counsel failed to secure an official translation of
evidence prior to trial. As a result, Albarran contends
that the translations of the 911 call and his interview
with Detective Charlie Grey were introduced too late during
trial and contained various inaccuracies.
Albarrans claim is nothing but a bare allegation.
Albarran fails to specifically plead facts concerning what
specific parts of the translations were inaccurate. Nor
88

does he plead what specific evidence was introduced or not
introduced as a result of these alleged inaccurate
translations. Furthermore, Albarran fails to specifically
plead what, if anything, his trial counsel could have done
differently had they secured official translations prior to
trial.
Albarran has failed to specifically plead how he was
prejudiced under Strickland. Albarran fails to plead any
clear and specific facts that, if true, would show a
have been different had these translations been completed
before trial. Albarran fails to plead any facts that would
show what the defense was prevented from presenting or what
the prosecution was able to present as a result of the late
translation of this testimony.
Although Albarran contends that the prosecution used
the 911 call and Detective Greys interview to convict him,
this is nothing but a bare allegation of prejudice.
Albarran has failed to plead any facts that, if true, would
show that the prosecution would not have been able to still
use these translations as evidence had they been
transcribed earlier. More importantly, Albarran has failed
89

to specifically plead how there was any probability, let
alone a reasonable one, that the late translation of the
911 call and his statement had any effect on the outcome of
his trial, given the overwhelming evidence against him,
including multiple eyewitnesses who saw Albarran shoot and
kill Officer Golden. Accordingly, because this claim is a
bare allegation that fails to plead clear and specific
facts that, if true, would entitle relief, it should be
d. The claim that the official interpreter
had an improper role.

In paragraphs 235-237, Albarran alleges that Ms.
Fernandez overstepped her role by giving an opinion that
one of the voices heard on the background of the 911 call
belonged to Albarran.
Albarrans claim is a bare allegation. Albarran fails to
specifically plead what portions of the 911 tape that the
trial court relied on Ms. Fernandez. Moreover, fails to
specifically plead what was actually said in these
unidentified instances or what comments or dialogue were
specifically attributed to him.
90

Albarran further fails to specifically plead any facts
that, if true, would establish that he was prejudiced under
Strickland. Notably, Albarran fails to specifically plead
that he, in fact, was not one of the voices in the
background of the 911 tape. Albarran fails to specifically
plead that the statements attributed to him contained any
prejudicial or damaging comments. Finally, Albarran has
failed to specifically plead any facts that, if true, would
show that there was a reasonable probability that the
outcome of his trial would have been different had his
trial counsel objected. As noted above, the evidence in
this case was overwhelming. Albarran simply has failed to
specifically plead how the fact that Ms. Fernandez
attributed certain statements to him in a translation had
any effect whatsoever on the outcome of his trial
particularly given the overwhelming evidence of guilt such
as the eyewitness testimony in this case. Therefore,
because this claim is insufficiently pleaded, it should be
it is without merit. Ala. R. Crim. P. 32.7(d). Contrary
to Albarrans contention, Ms. Fernandez did not testify or
91

formally offer her opinion as evidence that Albarrans
voice was on the 911 tape. While the trial court noted
that Ms. Fernandez had reviewed the 911 call many times in
an attempt to provide an accurate translation, the trial
court did not admit the written translation as evidence,
but only as an aid to the jury. (R. 3515.) In fact, the
trial court instructed the jury that the actual evidence at
issue consisted of the audio recorded copy of the 911 call
itself, not the written translation. Id. at 3528.
Therefore, because this claim is without merit, it should
record the Spanish-language proceedings.

counsel was ineffective for failing to include the audio
recording of the Spanish language portions of the
proceedings in the record.
This claim should be dismissed because it is
Albarrans claim is nothing but a bare, speculative
allegation. As Albarran admits, he cannot determine what,
if anything, was recorded or translated inaccurately
because he has not reviewed the audio recording. Thus, as
92

pleaded, Albarrans claim is nothing but speculation.
Albarran has failed to plead any clear or specific facts
that, if true, would show that any interpretations were
inaccurate or incomplete.
Nor does Albarran specifically plead how there is a
have been different but for trial counsels failure to
include this audio recording in the record. As noted
above, Albarran does not even allege that errors actually
occurred, but merely alleges that it is nearly impossible
to review his trial without reviewing the audio recording.
However, this bare allegation that he was unable to
completely review the trial record does not constitute a
sufficiently pleaded claim of prejudice under Strickland.
See Hyde, 950 So. 2d at 356 (a bare allegation that
Accordingly, because this claim is insufficiently pleaded,
it should be summarily dismissed. Ala. R. Crim. P.
32.7(d).

93

8. The claim that trial counsel failed to make a
complete and accurate record of the pre-trial
proceedings.

counsel was ineffective for failing to ensure that certain
proceedings were recorded. In support of his claim,
Albarran includes a laundry list of instances throughout
trial where proceedings took place off-the-record.
Albarrans claim is a bare allegation devoid of any
specific factual basis. Although Albarran lists in a
conclusory fashion certain proceedings that were not
recorded, he fails to plead specific facts necessary to
determine whether he is entitled to any relief. For
example, Albarran contends that the trial court discussed
potential jurors excuses off the record, but he fails to
plead specific facts concerning when these discussions took
place, what jurors were involved or what the discussions
involved.
Albarran also fails to specifically plead any facts
that, if true, would establish how he was prejudiced.
Albarran generically asserts that the failure to transcribe
94

these unidentified proceedings implicated his
constitutional rights, but this allegation is total
speculation. Albarran fails to specifically plead what
rights were implicated or what claims he was unable to
pursue. Nor does he specifically plead what, if anything,
could have been different had these proceedings been
transcribed. In particular, Albarran has failed to
specifically plead a factual basis for prejudice under
Strickland given that he consented to the waiver of venue
and that the trial court had discretion to excuse jurors
prior to voir dire beginning. Albarran simply has failed
to plead any specific facts that, if true, would establish
a reasonable probability that the outcome of his trial
would have been different had his trial counsel attempted
to record these non-critical proceedings. Therefore,
9. The claim that trial counsel failed to conduct
an effective guilt-phase investigation.

counsel failed to adequately investigate and prepare for
the guilt phase of his trial. As part of this claim,
Albarran includes a laundry list of areas he contends his
95

trial counsel failed to adequately investigate. As noted
below, this entire claim is insufficiently pleaded and is
therefore, due to be dismissed. Ala. R. Crim. P. 32.6(b).
For example, Albarran contends that his trial counsel
failed to hire a new fact investigator after his original
investigator, Richard Blake, was injured in a car accident.
But Albarran fails to specifically plead the name of a new
investigator who could have been hired, what new facts or
information this unidentified investigator could have
discovered, what specific witnesses this new investigator
would have interviewed, or how there was a reasonable
different had a new investigator been hired.
Although Albarran alleges that trial counsel could have
discovered Ricky Hulgan, another eyewitness who Albarran
contends would have testified that he did not hear Officer
Golden say anything after he was shot and did see Albarran
smirk, Albarran fails to specifically plead facts that, if
true, would show prejudice under Strickland. Even assuming
his allegation as true, simply because Mr. Hulgan may not
have heard Officer Golden beg for his life does not refute
the testimony of other witnesses who observed this, nor
96

would it affect the prosecutions ability to argue this
point based on the testimony presented at trial from other
witnesses.
More importantly, Albarran fails to plead how there
would have been a reasonable probability that the outcome
of his trial would have been different if Mr. Hulgan had
testified. In the entire context of trial, the testimony
Albarran alleged Mr. Hulgan could have provided would not,
in any fashion, dispute or call into question the
overwhelming evidence that Albarran shot and killed Officer
Golden. In fact, Albarran does not plead any facts that,
if true, would show that Mr. Hulgans testimony would not
have been consistent with all the other eyewitness
testimony on the ultimate point that Albarran shot and
killed Officer Golden. Whether or not Albarran smirked and
whether or not Mr. Hulgan heard Officer Golden say anything
after being shot has no bearing on Albarrans guilt. Thus,
Albarran has failed to plead a sufficient factual basis for
prejudice under Strickland.
Albarran also contends that his trial counsel should
have obtained background checks on all eyewitnesses and
should have obtained all internal investigations of law
97

enforcement officers who testified in his case. However,
as an initial matter, Albarran has failed to plead any
facts that, if true, would show that his trial counsel
would have been entitled to such information, even if it
existed. Moreover, Albarran has failed to specifically
plead what, if anything, he could have learned from
background checks on the States eyewitnesses. In
particular, Albarran fails to plead what facts would have
shown that Tanisha and William Thomas had predispositions
to untruthfulness. Nor does Albarran specifically plead
what information he could have learned from seeking
internal investigation reports of law enforcement officers,
if any existed, nor does he specifically identify the
officers he would have impeached with this alleged
information.
Albarran further argues that his trial counsel should
have obtained incident reports of police activity at
Jaliscos Restaurant before and after his arrest, but he
fails to specifically plead what information he would have
learned or how this would have been relevant to his case,
let alone favorable, given the overwhelming evidence of
guilt in this case.
98

Finally, Albarran contends that trial counsel failed
conduct independent testing of certain evidence such as his
Nissan Sentra, his clothes, and the revolvers found at the
scene for latent fingerprints. But this claim is nothing
but pure speculation and conjecture. Albarran fails to
plead what specific testing his trial counsel should have
done. Nor does he plead what relevance such testing would
have had to the evidence presented during trial or, more
importantly, what information could have been discovered
from such testing and how this information would have been
helpful or relevant to his case. For example, Albarran
completely fails to plead what purpose the testing of his
bloody clothes would have served, let alone plead how the
failure to test his clothes prejudiced him, given the
overwhelming evidence against him, including eyewitness
testimony, that he shot and killed Officer Golden.
Accordingly, because this claim is insufficiently pleaded
and constitutes a bare, conclusory allegation, it should be
adequately litigate pre-trial motions.

counsel was ineffective for filing generalized form motions
99

that were not tailored to the specific circumstances of his
case.
Albarran has failed to plead clear and specific facts that,
if true, would entitle him to relief under this claim. As
an initial matter, Albarran has failed to specifically
plead how the filing of a form motion constitutes deficient
performance. Moreover, Albarran has failed to specifically
plead facts that, if true, would establish prejudice under
Strickland. For example, Albarran fails to specifically
plead how, even if his trial counsel had included more
specific facts, the trial court would have granted his
motion in limine to preclude evidence relating to
Albarrans race, particularly given that Albarrans
cultural heritage and background was integral to his own
defense strategy. Further, Albarran has failed to plead
facts that, if true, would show how he was prejudiced under
Strickland by various references to his race during trial
given that his cultural heritage was intertwined in his
defense. Nor has he pleaded facts that would show a
reasonable probability the result of the guilt phase would
100

have been different had trial counsel provided more detail
in its motion in limine given the overwhelming evidence of
guilt in this case.
Likewise, although Albarran complains that trial
counsels motion to suppress was left in a generic form, he
fails to specifically plead facts that should have been
included. Albarran fails to specifically plead facts that,
if true, would show a reasonable probability that his
motion to suppress would have been granted if he provided
for specific information. Most importantly, Albarran has
failed to specifically plead facts that, if true, would
establish a reasonable probability that the outcome of his
trial would have been different, even if his motion to
suppress would have been granted, based on the other
overwhelming evidence of guilt that was presented during
trial. Accordingly, because this claim is insufficiently
pleaded, it is due to be dismissed. Ala. R. Crim. P.
32.7(d).
B. Albarrans claim that his trial counsel was
ineffective during the guilt-phase preparation and
litigation.

In paragraphs 260-348, Albarran raises various
allegations concerning his trial counsels performance
101

during the guilt phase. Each of these allegations will be
addressed individually below.
adequately formulate, investigate, and present
various theories of defense.

counsel was ineffective for primarily focusing on the
insanity defense and secondarily focusing on the argument
that his intoxication rendered him unable to form the
specific intent to commit capital murder. Albarran argues
trial counsel also presented a third defense that Officer
Golden surprised Albarran and that a spontaneous shoot-out
occurred. Albarran contends it was ineffective to present
so many theories with little direct evidence to support the
defense theories.
facially meritless and fails to state a claim upon which
relief can be granted. Ala. R. Crim. P. 32.7(d). Even
assuming all of his allegations as true, Albarran has
failed to plead a claim that would establish that he was
entitled to relief under Strickland. See Bryant, 2011 WL
339585, at *6 ([w]here a simple reading of the petition
for post-conviction relief shows that, assuming every
102

allegation of the petition to be true, it is obviously
without merit or is precluded, the circuit court [may]
summarily dismiss that petition.).
First, even assuming his allegations as true, as
pleaded, Albarrans claim that his trial counsel was
deficient is meritless. On its face, Albarrans claim is a
classic example of the type of second-guessing and
hindsight grading of trial counsels performance that
Strickland prohibits. In essence, Albarrans argument is
that because trial counsels strategic choice to proceed
with an insanity defense, as well as other secondary
defense arguments, was unsuccessful, trial counsel should
have done something different - namely disregard the
insanity defense and elevate the no specific intent
argument as the main defense strategy.
But this allegation, on its face, is without merit, for
[t]he fact that a particular defense was unsuccessful does
not prove ineffective assistance of counsel. See Davis v.
State, 9 So. 3d 539, 550 (Ala. Crim. App. 2008)(quoting
Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir.
2000)). Moreover, courts must avoid second-guessing
counsel's performance: it does not follow that any counsel
103

who takes an approach we would not have chosen is guilty of
rendering ineffective assistance. Chandler, 218 F.3d at
1314. Thus, counsel cannot be adjudged incompetent for
performing in a particular way in a case, as long as the
approach taken might be considered sound trial strategy.
Id.; quoting Darden v. Wainwright, 477 U.S. 168, 186
(1986).
Thus, even accepting his allegations as true, Albarran
has failed to plead a claim that could rebut the strong
presumption that counsel's performance was reasonable.
Strickland, 466 U.S. at 689. As both the record reflects
and Albarran admits in his petition, it is clear that
Albarrans experienced attorneys decided to pursue multiple
defense strategies, including arguing the insanity defense
as well as the lack of specific intent. Albarran has
failed to plead any specific facts or authority which
supports the proposition that it is unreasonable to pursue
multiple lines of defense. Simply the fact that Albarran
now contends that it was unnecessary to pursue the
insanity defense, even if accepted as true, on its face
does not establish that trial counsels actions might not
be considered sound strategy.
104

Furthermore, Albarrans allegation that trial counsels
decision to present so many theories in the face of so
little direct evidence...diminished their credibility is
simply meritless because it ignores the nearly impossible
task trial counsel faced. As the United States Supreme
Court has held, [a]ttorneys representing capital
defendants face daunting challenges in developing trial
strategies, not least because the defendant's guilt is
often clear. Prosecutors are more likely to seek the death
penalty, and to refuse to accept a plea to a life sentence,
when the evidence is overwhelming and the crime heinous.
Florida v. Nixon, 543 U.S. 175, 191 (2004). Here, the
evidence against Albarran was overwhelming. Trial counsel
had few meaningful choices of trial strategies in the face
of such evidence, particularly the volume of eyewitness
evidence.
Notably, this is not the case where there was an
obvious, or even plausible line of defense. This is not a
case where Albarran had an alibi or where there was
forensic evidence that might have tended to cast doubt on
his guilt. This was a case of overwhelming guilt. To be
sure, Albarran fails to allege any alternative strategy
105

that could have been pursued by trial counsel. Nor does he
specifically plead any authority which requires trial
counsel to have direct evidence for ever theory presented
during trial. As pleaded, Albarrans claim is simply
meritless because it would restrict trial counsels ability
to argue every legitimate inference in favor of their
client particularly in situations where the absence of
evidence proven by the prosecution would support reasonable
doubt. Given this difficult context, even assuming his
allegations as true, Albarran failed to plead a claim that
could establish deficient performance because there is no
question that trial counsels strategies might be
considered sound trial strategy. Chandler, 218 F.3d at
1314.
This claim is also facially meritless because, even
accepting is allegations as true, Albarran has failed to
plead a claim that could establish prejudice under
Strickland. Albarrans contention that reasonable doubt
could have been established had trial counsel only
presented evidence of his intoxicated state and argued the
State failed to establish specific intent, without
asserting any other defenses, is meritless. This
106

allegation ignores the fact that the jury was presented
with this exact argument and rejected it. Trial counsel
specifically argued that the state failed to establish
specific intent based on the fact, among other things, that
Albarran was intoxicated. (R. 3608-3616.) Yet the jury
rejected this argument and found Albarran guilty beyond a
reasonable doubt.
Moreover, even if trial counsel focused solely on this
argument, Albarran cannot establish that there is a
reasonable probability the outcome of his trial would have
been different. As noted above, the evidence in this case
was overwhelming. Even accepting his allegations as true,
Albarran has not pleaded any new facts or allegations that
his trial counsel could have presented or argued, but only
that his trial counsel should have eliminated certain
defense arguments, namely the insanity defense. But even
if trial counsel focused on what Albarran now contends was
the strongest defense, in the face of such strong evidence
of guilt, Albarran cannot establish that there is a
reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting
guilt. Strickland, 466 U.S. at 695. In short, even
107

accepting his allegations as true, the jury did not convict
Albarran because it was confused about trial counsels
strategies; the jury convicted him because of the
overwhelming evidence that established his guilt beyond a
reasonable doubt. Albarran has simply failed to plead any
facts that would show a reasonable probability of a
different result given the record in this case.
Accordingly, because even accepting his allegations as
true, Albarrans claim is facially without merit, this
claim is due to be dismissed. Ala. R. Crim. P. 32.7(d).
2. The claim that trial counsel failed to seek a
jury charge on self-defense in light of
available evidence and counsels argument that
Officer Goldens death was a result of an
unplanned shoot-out and not intentional
murder.

counsel was ineffective for failing to request a self-
defense instruction based on his statement to Dr. Hooper
that he had reached for his guns to put them down when he
exited the Jalisco restaurant and that Officer Golden may
have misperceived Albarran as a threat and initiated the
shooting.
108

relief may be granted. Ala. R. Crim. P. 32.7(d); see also
Bryant, 2011 WL 339585, at *6. This claim is meritless for
several reasons.
First, even accepting his allegations as true,
Albarrans claim is meritless because he was not entitled
to a self-defense instruction. See Dunaway, 2009 WL
4980320, at *23 (Counsel cannot be held ineffective for
failing to raise an issue that has no merit.). Generally,
every accused is entitled to have charges given, which
would not be misleading, which correctly state the law of
his case, and which are supported by any evidence, however
weak, insufficient, or doubtful in credibility. Spencer
v. State, 58 So. 3d 215, 240 (Ala. Crim. App. 2009)(quoting
Ex parte Chavers, 361 So. 2d 1106, 1107 (Ala. 1978)).
However, the court should not instruct on the law of self-
defense where there is no evidence to sustain the plea.
Spencer, 58 So. 3d at 240 (quoting King v. State, 478 So.
2d 318, 319 (Ala. Crim. App. 1985)). Moreover, [b]efore
the issue of self-defense is submitted to the jury, the
defendant has the burden of proving, among other things,
that he reasonably believe[d], Alabama Code 1975, 13A
323, that his attacker was about to use unlawful deadly
109

physical force, unless this fact arises out of the evidence
produced against him to prove the homicide. Id.
Here, a self-defense instruction was not supported by
the evidence. There was simply no evidence presented at
trial that Albarran reasonably believed that the use or
imminent use of unlawful physical force was going to be
administered by Officer Golden. The undisputed evidence at
trial indicated that a 911 call was placed from the El
Jalisco Restaurant and that Officer Golden responded to the
scene in police uniform and in a police vehicle. Albarran,
96 So. 3d at 145. There was no evidence establishing that
Officer Golden fired at Albarran first or that Officer
Golden was the initial aggressor. Notably, Albarrans sole
support for this allegation comes from a statement he made
to Dr. Hooper that he reached for his guns as he saw
Officer Golden. Albarran then speculates that Officer
Golden may have initiated the gunfight. (Pet. at 127.)
But, even accepting this allegation as true, this does not
indicate that Albarran had a reasonable belief that Officer
Golden was about to use unlawful force physical force
against him. Instead, the evidence indicates that Albarran
was the instigator, as eyewitness testimony indicated that
110

Officer Golden was backing away from the restaurant as
Albarran was shooting at him. (R. 2029, 2083.)
Accordingly, even if Albarran had a fear of Officer
Golden, it was not a reasonable fear. See Spencer, 58 So.
3d at 244 (holding that there was no error in trial court
refusing self-defense instruction where defendant heard
commotion, rushed to commotion, and, upon confronting
police officers, fatally shot multiple officers, including
a final point-blank gunshot to the head of an officer who
lay on the ground outside an apartment). This was not an
unknown, armed man who approached Albarran, but a uniformed
police officer who was responding to a 911 call. There was
simply no evidence to support a self-defense instruction,
particularly given the multiple eyewitnesses who testified
that Albarran shot Officer Golden at close range after
Golden had fallen to the ground.
Further, Albarrans allegation that a self-defense
instruction was warranted based on the fact that Officer
Golden filed a report nine months before had been
threatened by a Mexican Mafia member is utterly meritless.
Even accepting this allegation as true, this fact has no
bearing on whether Albarran was entitled to a self-defense
111

instruction which focuses on whether Albarrans beliefs
were reasonable, not Officer Goldens. Even assuming this
allegation as true, other than pure speculation, this fact
does not provide any evidence whatsoever to suggest that
Officer Golden initiated the confrontation or that Albarran
reasonably believed that Officer Golden was about to use
unlawful deadly force.
Second, this claim is meritless because, even accepting
his allegations as true, Albarran cannot establish
deficient performance under Strickland. The decision
whether to request certain jury instructions is a matter of
trial strategy. James v. State, 61 So. 3d 357, 379 (Ala.
Crim. App. 2009)(quoting Myhand v. State, 981 So. 2d 988,
992 (Miss. App. 2007)). Here, the record demonstrates that
there was a good reason that trial counsel did not request
an instruction on self-defense. Even assuming that the
evidence supports such an instruction which it did not -
a self-defense instruction, which requires a reasonable
belief of the use or imminent use of unlawful physical
force by another person, Alabama Code 13A323, would
have conflicted completely with trial counsels main
strategy of arguing that Albarran was not guilty by reason
112

of mental disease or defect. A self-defense instruction
would also have been inconsistent with one of trial
counsels other main theories, namely that Albarran could
not form the specific intent to kill as a result of
voluntary intoxication. See Tinsley v. Million, 399 F.3d
796, 808 (6th Cir. 2005) (rejecting claim of ineffective
assistance of counsel regarding counsel's decision not to
request a self-defense instruction or lesser-included-
offense instruction; this was a permissible exercise of
trial strategy because the primary line of defense was
that defendant was not the shooter).
Furthermore, the record demonstrates that trial counsel
requested and received an instruction on provocation based
on the evidence presented and which was consistent with
trial counsels theory of defense that Albarran was in the
middle of a dispute with his wife and was surprised by
Officer Golden. (R. 3445-3450, 3475.) Therefore, even
accepting his allegations as true, as pleaded, Albarran
cannot demonstrate that no competent counsel would have
failed to request a self-defense instruction given the
specific facts of this case. Grayson v. Thompson, 257 F.3d
1194, 1216 (11th Cir. 2001).
113

Finally, this claim should be summarily dismissed
because Albarrans claim of prejudice under Strickland is
facially meritless. Even accepting his allegations as
true, Albarran has failed to plead a claim that could show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different. Strickland, 466
U.S. at 694. Albarrans allegation that he would have been
acquitted of capital murder had trial counsel requested
such an instruction is simply baseless. As noted above,
the evidence of guilt was overwhelming. Multiple
eyewitnesses testified that Albarran shot at Officer Golden
as Golden backed away and that Albarran continued to shoot
at Golden after Golden fell to the ground and cried
Wait!. (R. 2029.) Even assuming his allegations as
true, Albarran cannot establish that he was entitled to a
self-defense instruction, nor can he show that, even
assuming the instruction was given, there was a reasonable
probability that the factfinder would have had a
reasonable doubt respecting guilt given the overwhelming
evidence proving that Albarran unlawfully and intentionally
killed Officer Golden. Strickland, 466 U.S. at 695. Thus,
114

because this claim is facially meritless and no purpose
would be served by any further proceedings, this claim
should be dismissed. Ala. R. Crim. P. 32.7(d).
3. The claim that trial counsel failed to prepare
for the jury visit to the crime scene.

counsel was ineffective for failing to make use of the
jurys visit to the crime scene. Albarran argues that his
trial counsel should have taken steps to demonstrate during
the visit how far the eyewitnesses were from the scene, the
angles of the eyewitnesses views and any obstructions the
eyewitnesses had.
relief may be granted. Ala. R. Crim. P. 32.7(d); see also
Bryant, 2011 WL 339585, at *6. Even assuming all of his
allegations as true, Albarrans claim is without merit
because he has failed to plead a facially meritorious claim
of deficient performance or prejudice under Strickland.
As pleaded, Albarran does not allege that trial counsel
failed to inform the jury of a specific fact or failed to
pursue a specific line of defense. Notably, as Albarran
admits in his petition, trial counsel initiated the request
115

to have the jury view the crime scene. Moreover, the
record demonstrates that trial counsel specifically cross-
examined eyewitnesses, such as Chad Steele, regarding the
fact that he was walking to the break room when he first
heard the shots, that he was 70-90 yards away from the
scene, that traffic was moving by at the time and it was
loud, and the fact that there were cars parked in parking
lot at that time. (R. 2070, 2071, 2074-2076.)
Instead, Albarran merely alleges that his trial counsel
was ineffective for not taking the additional step of
arranging markers where objects were located at the scene
and taking jurors to the various locations where the
eyewitnesses, such as Steele, were positioned during the
crime. But even assuming these allegations as true, as
pleaded, Albarran cannot establish deficient performance.
Simply the fact that trial counsel did not take the
additional step of providing demonstrative evidence during
the jurys visit to the crime scene, where trial counsel
emphasized such evidence during testimony at trial, on its
face, cannot establish that trial counsels actions were
outside the wide range of professionally competent
assistance. Strickland, 466 U.S. at 690. Therefore,
116

because Albarrans claim, even accepting all of his
allegations as true, is facially without merit, it should
Likewise, this claim is facially meritless because
Albarran as failed to plead a facially meritorious claim of
prejudice under Strickland. Even accepting his allegations
as true, he has failed to plead a claim that could show
that there was a probability sufficient to undermine
confidence in the outcome of his trial. Id. at 694. As
noted above, even if trial counsel had shown the jury the
angles of the eyewitnesses views or how far away certain
eyewitnesses were from the crime scene, such actions would
not have provided any new evidence, but would have merely
re-visited facts that trial counsel had already drawn out
during cross-examination. Moreover, Albarran fails to
plead any facts that would show how providing markers or
cones or recreating the crime scene, even assuming such
actions were taken, would have challenged or disputed the
testimony of multiple eyewitnesses.
Finally, even accepting these allegations as true,
Albarrans claim is facially meritless because there is no
reasonable probability that the factfinder would have had
117

a reasonable doubt respecting guilt. Id. at 695. The
entire basis of Albarrans substantive allegation is
baseless. The record indicates that the testimony from
numerous eyewitnesses was clear and convincing. The
actions which Albarran alleges should have been taken
during the jurys visit to the crime scene, even if true,
would only have amounted to generic attempts to challenge
the eyewitness testimony in a re-created environment after
the fact. Moreover, such attempts in themselves would have
had little to no value given that there were multiple
eyewitnesses to the crime whose versions of the story were
consistent and who unequivocally identified Albarran as the
shooter. Therefore, because Albarrans allegation of
prejudice is facially without merit and because no purpose
would be served by any further proceedings, this claim is
due to be dismissed. Ala. R. Crim. P. 32.7(d).
for presenting lay witness testimony that
undermined and did not support their experts
testimony.

counsel erred in presenting lay testimony that undermined
Dr. Silvas diagnosis of substance-induced psychosis.
Albarran also contends that his trial counsel was
118

ineffective for failing to conduct a complete evaluation of
his mental illnesses.
Although Albarran contends that certain lay witness
testimony conflicted with Dr. Silvas expert testimony, he
fails to specifically plead the names of the lay witnesses
whose testimony was in conflict. Nor does he specifically
plead what specific aspects of the witnesses testimony was
in conflict other than generic references that some
unidentified witnesses were not aware of the extent of his
drinking and that some witnesses had not seen him in years.
Furthermore, Albarran fails to specifically plead the name
of any witnesses who could have substantiated Dr. Silvas
diagnosis, nor does he specifically plead what additional
evidence could have been presented to support this theory.
See Mashburn v. State, CR110321, 2013 WL 3589300, at *60
(Ala. Crim. App. July 12, 2013)(in order to satisfy the
requirements in Rule 32.3 and Rule 32.6(b), a Rule 32
petitioner must identify by name the witnesses he believed
should have been called to testify and must plead with
119

specificity what the testimony of those witnesses would
have been.).
Notably, although he contends that Antonio Albarran and
Heroin Jaimes could have testified about his alcohol and
drug use during the time leading up to the offense, he
fails to allege any specific facts to support this bare
allegation. Albarran fails to allege that either witness
could have testified about his substance on the day of the
offense, let alone provide testimony about the specific
amount of drugs or alcohol he used on the day of the
murder. Thus, Albarran has failed to plead [t]he full
factual basis for his claim. McNabb, 991 So. 2d at 318.
Likewise, while Albarran alleges the name of an expert
who would have testified that the mental health evidence
presented to the jury was incomplete, his claim is still a
bare allegation that is not specifically pleaded. Albarran
fails to plead a specific diagnosis for a specific mental
disease or defect from which he suffered at the time of the
offense. Instead, Albarran merely alleges that an expert
would have opined that there are indications of a
psychiatric disorder and frontal lobe impairment. (Pet. at
132-133.) Yet Albarran fails to plead that any expert has
120

actually diagnosis him with a specific disorder or
impairment. More importantly, Albarran has failed to plead
any facts that, if true, an expert could have provided to
show that as a result of severe mental disease or defect,
was unable to appreciate the nature and quality or
wrongfulness of his acts. Ala. Code 13A-3-1. Thus,
true, would demonstrate a reasonable probability that the
outcome of the guilt phase would have been different had
his counsel pursued this strategy. Accordingly, because
Albarran has failed to plead essential factual allegations,
this claim is insufficiently pleaded and should be
5. The claim that trial counsel failed to call
eyewitnesses to rebut the States eyewitness
testimony.

counsel was ineffective for failing to subpoena
eyewitnesses who could have refuted the States eyewitness
testimony. Albarran contends that trial counsel should
have subpoenaed George Rodgers and Ricky Hulgan who would
have testified that they did not hear Officer Golden cry
121

for help. This claim should be dismissed for several
reasons.
First, this claim is insufficiently pleaded. Ala. R.
Crim. P. 32.6(b). Albarran has failed to plead facts that,
if true, would show a reasonable probability that the
outcome of the guilt phase would have been different.
Whether or not Officer Golden cried for help has no bearing
on whether Albarran intentionally shot and killed Officer
Golden. And Albarran entirely fails to plead facts showing
how such evidence, even accepted as true, would lead to a
reasonable probability that the jury would have had
reasonable doubt particularly given the overwhelming
evidence of guilt in this case. To be sure, Albarran does
not allege that Rodgers or Huglan would have testified that
Albarran did not shoot Golden. In fact, even accepting his
allegations as true, Rodgers and Huglans testimony likely
would have corroborated the evidence that Albarran killed
Officer Golden and further would have far outweighed any
value in attempting to rebut the evidence that Officer
Golden cried for help a fact that was not essential or
even necessary to prove in order to establish Albarrans
intent to kill. Albarran simply has failed to plead how
122

this testimony would have been helpful, let alone how it
would have lead to a reasonable probability of a different
outcome.
This claim also should be summarily dismissed because
it is facially meritless and thus, fails to state a claim
upon which relief can be granted. Ala. R. Crim. P.
32.7(d). Even assuming his allegations as true, Albarran
has failed to plead a claim that could establish a
have been any different. Even if Rodgers and Hulgan had
testified that they personally did not hear Officer Golden
cry for help, this would not have disproven or had any
effect whatsoever on the multiple eyewitnesses, such as
Tanisha Thomas or Chad Steele, who heard Officer Golden cry
out. (R. 2029, 2168-2169.) Furthermore, even if Rodgers
and Hulgan had testified that Officer Golden did not cry
for help, such testimony would have no bearing on the
testimony from multiple eyewitnesses who observed Albarran
physically shooting Officer Golden many times, including
while Officer Golden was on the ground. In short, the
testimony that Albarran claims should have been presented
would not have been relevant, let alone helpful.
123

Put simply, even assuming as true that one witness did
not hear Officer Golden cry for help, this fact would not
have led to any probability, let alone a reasonable one,
that Albarran still would not have been found guilty of
capital murder. On its face, this allegation simply fails
to allege any facts that would show there was a reasonable
probability that the factfinder would have had a
reasonable doubt respecting guilt. Strickland, 466 U.S.
at 695. Moreover, even accepting his allegations as true,
Albarran has failed to plead a claim that could establish
his trial counsel was objectively unreasonable for not
presenting this relatively insignificant testimony in the
face of such overwhelming evidence. Therefore, because
this claim is facially without merit and no purpose would
be served by any further proceedings, it should be
adequately cross-examine State witnesses.

counsel was ineffective for failing to adequately cross-
examine state witnesses. Albarran contends that his trial
counsel failed to elicit desired information from Emily
Ward about his alcohol levels, failed to adequately examine
124

eyewitnesses to demonstrate the unreliability of their
recollections, and failed to adequately cross-examine Dr.
Hooper.
Albarrans claim is simply a bare allegation that fails to
plead basic facts to support his claim. For example,
Albarran fails to plead any specific facts concerning what
information his trial counsel could have elicited from
Emily Ward regarding his alcohol levels, what specific
questions trial counsel should have asked to elicit this
information, or how this unidentified information would
have been useful or helpful. See Mashburn, 2013 WL
3589300, at *60 (in order to satisfy the requirements in
Rule 32.3 and Rule 32.6(b), a Rule 32 petitioner must
identify by name the witnesses he believed should have been
called to testify and must plead with specificity what the
testimony of those witnesses would have been.)
Albarran also fails to specifically plead the names of
the eyewitnesses he contends his trial counsel could have
cross-examined more effectively or what specific questions
his trial counsel should have asked. See Mashburn, 2013 WL
125

3589300, at *60. Albarran also fails to plead specific
facts that, if true, would show what evidence his trial
counsel could have elicited to show that these unidentified
witnesses testimony was unreliable. Nor does Albarran
plead what specific facts about the dimensions of the crime
scene trial counsel should have used to impeach the
witnesses. Although he contends that witnesses testified
they were closer to the crime scene than they actually
were, he fails to plead any facts regarding what specific
distance these witnesses actually were during the shooting
or how trial counsel could have determined this
information.
Finally, Albarran fails to specifically plead facts
that, if true, would demonstrate how Dr. Hoopers report
was unreliable. At no point does Albarran plead any
specific facts or testimony he could have elicited from Dr.
Hooper, the interpreter who assisted in the evaluation, and
the social worker who worked at Taylor Hardin. Although he
contends the interpreter used by Dr. Hooper was
unqualified, he fails to specifically plead what
certification levels the interpreter did not possess or any
other specific facts that, if true, would show that the
126

interpreter did not accurately interpret during Dr.
Hoopers evaluation. Further, although he contends that
Dr. Hooper failed to conduct a thorough social history
investigation, Albarran fails to plead specific facts
concerning what specific actions Dr. Hooper should have
taken to investigate and what information he could have
learned.
More importantly, Albarran fails to plead what specific
questions trial counsel should have asked to draw out this
information during the cross-examination of Dr. Hooper.
Nor does he specifically plead how there was a reasonable
different but for trial counsels failure to conduct cross-
examination in the unspecified manner Albarran has alleged
in his petition. See Hyde, 950 So. 2d at 356 (A bare
allegation that prejudice occurred without specific facts
indicating how the petitioner was prejudiced is not
sufficient.). Accordingly, Albarran has failed to plead a
sufficient factual basis that, if true, would establish
either deficient performance or prejudice under Strickland.
127

7. The claim that trial counsel failed to request
a competency hearing after cross-examining Dr.
Hooper.

counsel was ineffective for failing to request a competency
hearing in the middle of trial after the cross-examination
of Dr. Hooper. Albarran contends that Dr. Hoopers
testimony was inconsistent with records provided by Taylor
Hardin Medical Facility and that this fact, along with the
fact that he initially failed the first competency
evaluation, raises a bona fide doubt as to Albarrans
competency to stand trial.
facially meritless, and thus, fails to state a claim upon
which relief can be granted. Ala. R. Crim. P. 32.7(d).
This claim is without merit because, even assuming all of
his allegations as true, Albarran has failed to plead a
claim that could show that he was actually incompetent to
stand trial. A defendant is mentally incompetent to stand
trial or to be sentenced for an offense if that defendant
lacks sufficient present ability to assist in his or her
defense by consulting with counsel with a reasonable degree
of rational understanding of the facts and the legal
128

proceedings against the defendant. Ala. R. Crim. P. 11.1.
Notably, a defendant is not automatically entitled to a
competency hearing. Connell v. State, 7 So. 3d 1068, 1078
(Ala. Crim. App. 2008). Instead, a defendant is entitled
to a hearing only after a trial court makes a preliminary
determination that reasonable grounds exist[] to doubt the
defendant's competency. Connell, 7 So. 3d at 1068 (citing
Ala. R. Crim. P. 11.3, Committee Comments.).
The only support for Albarrans allegation that there
was a bona fide doubt about his competency is that Dr.
Hoopers testimony was inconsistent with records from
Taylor Hardin Medical Facility. In particular, Albarran
complains that, while certain records stated that he scored
a 60% on two competency assessments given on November 7 and
November 13, 2007 respectively (Supp. C. 476), Dr. Hooper
testified that it was his practice not to repeat tests and
thus, Dr. Gragg, the mental-health professional who
evaluated Albarran on November 13, 2007, did not actually
administer a test, but just conducted a professional
interview about his understanding of the court system. (R.
3270-3273.) As a result, Dr. Hooper explained that because
Dr. Gragg indicated after his November 13, 2007 interview
129

and training with Albarran that not much had changed, the
social worker who filled out the discharge summary assigned
a 60% score for the November 13, 2007 interview, which was
the same score Albarran had received on his earlier test.
Id. at 3272-3273.
But even accepting his allegations as true, Albarran
has failed to plead a claim that could show reasonable
grounds to doubt his competency that would have
necessitated a competency hearing. Even assuming as true
that there were inconsistencies between Taylor Hardin
Records and Dr. Hoopers testimony, these inconsistencies
were not significant. The alleged inconsistencies did not
involve substantive doubt as to whether Albarran was
actually incompetent, but only concerned whether he had
been given an actual test as opposed to professional
interviews. Regardless of whether he was given a test or
an interview on November 13, 2007, the fact is unchanged
that Albarran had not made significant progress since he
was admitted to Taylor Hardin.
However, as Dr. Hooper explained, after Dr. Gragg sat
down with Albarran for three or four hours and taught him
about the courtroom, by the time Dr. Hooper evaluated
130

Albarran the next day, he did indeed understand what was
happening, which he seemed to have no trouble doing. (R.
3254.) Simply the fact that trial counsel found
inconsistencies in Albarrans discharge paperwork, even if
true, does not mean that there were reasonable grounds to
doubt his competency. The inconstancies at issue related
to the record keeping process employed by Taylor Hardin but
did not raise a bona fide doubt as to Albarrans competency
to stand trial.
More importantly, this claim is meritless on its face
because Albarran was competent to stand trial. Regardless
of any alleged inconsistencies, Dr. Hopper ultimately found
Albarran competent to stand trial. (Supp. C. 841, R. 3253-
3255.) Contrary to Albarrans allegation, that fact that
Albarran failed his initial evaluation was not significant
as Dr. Hooper noted that he scored a 60 without a
translator so he wasnt terrible. (R. 3254.) After
Albarran finished receiving training and education with Dr.
Gragg, Dr. Hooper saw him the next morning with the
translator and he was completely knowledgeable. He had no
difficulty telling me what was going on in the courtroom at
all. Id. at 3254-3255.
131

Finally, Albarrans contention that, because his 2008
competency cannot be assessed now, he should be granted a
new trial is meritless. As noted above, Albarran was
evaluated and found competent to stand trial. This fact
wholly distinguishes his case from the cases cited in his
petition (Pet. at 143) such as Drope v. Missouri, 420 U.S.
162 (1975), where the defendants request for a psychiatric
evaluation concerning his competency to stand trial was
denied.
Even accepting his allegations as true, Albarran has
failed to plead any facts that he did not have a rational
and factual understanding of the proceedings against him or
that he was unable to assist with his counsel to contradict
Dr. Hoopers finding. In fact, Albarran has failed to
plead any expert or identify any evidence that would show
that he was, in fact, incompetent to stand trial. Thus,
even accepting his allegations as true, Albarran has failed
to plead a claim that could establish prejudice under
Strickland where he was competent to stand trial.
Furthermore, even accepting his allegations as true, trial
counsel could not have been deficient for failing to
request a competency hearing where there was no meritorious
132

basis for such a request. See Lee v. State, 44 So. 3d
1145, 1173 (Ala. Crim. App. 2009)(Counsel cannot be held
ineffective for failing to raise an issue that has no
merit.). Therefore, because this claim is without merit,
it should be dismissed. Ala. R. Crim. P. 32.7(d).
8. The claim that trial counsel failed to object
to improper prosecutorial testimony and
argument relating to Albarrans immigration
status.

counsel was ineffective for failing to object to improper
testimony elicited by the State concerning his ethnicity
and immigration status. Albarran also contends that his
trial counsel should have objected to the prosecutions
statements during closing arguments concerning his
ethnicity and immigration status.
claim is nothing but a bare allegation devoid of any
specific factual basis. Albarran merely has searched
through the record and provided a laundry list of instances
where his ethnicity was mentioned. But [a]n
ineffectiveness of counsel claim does not lend itself to a
search of the record to pick the instances in which an
133

objection could have been made. Tarver, 629 So. 2d at 19.
Here, Albarran merely lists certain testimony that he finds
objectionable without specifically pleading why such
comments were prejudicial or ethnically charged.
For example, Albarran contends that trial counsel
should have objected to testimony from various witnesses
where they identified Albarran as the Hispanic man,
Latino, or Mexican that they observed during the crime.
(Pet. at 144-145.) Yet Albarran fails to specifically
plead how these references were improper or prejudicial.
In the context of the record, these references were not
inflammatory, but were simply a description or identifier
of the person that the respective witnesses saw shooting
Officer Golden. Albarran has failed to plead any facts
that would show that these terms are improper or are not
commonly used and acceptable descriptions of people of
Hispanic descent. Moreover, Albarran has failed to plead
any facts that, if true, would show that had trial counsel
objected, that the objection would have been sustained.
Therefore, he has failed to plead any specific facts that,
deficient for failing to object. See Lee, 44 So. 3d at
134

1173 (Counsel cannot be held ineffective for failing to
raise an issue that has no merit.).
Moreover, Albarran has failed to specifically plead how
he was prejudiced. As noted above, Albarran has failed to
plead any facts that, if true, would show how such
descriptions could be considered prejudicial. Albarran
also has failed to plead how he was prejudiced by these
references given the fact that he was a Mexican and of
Hispanic descent was well-known to the jury as well as the
fact that trial counsel highlighted his Hispanic heritage
and background as part of their trial strategy.
Similarly, although Albarran contends that this trial
counsel should have objected when the State asked Nelida
Albarran whether she was a United States citizen, he fails
to specifically plead how he was prejudiced by this
isolated comment. Moreover, Albarran fails to specifically
plead how he was prejudiced given that the context of the
question was part of an overall line of questioning
designed to elicit the closeness of Nelida Albarrans
relationship to Albarran by referencing facts concerning
when each of them came to live in the United States and
where each of them worked. (R. 2639-2640.)
135

In regard to Albarrans argument that trial counsel
should have objected to the prosecutions references in
closing arguments to his ethnicity and immigration status,
this claim is also insufficiently pleaded. Ala. R. Crim.
P. 32.6(b). Albarran fails to specifically plead how he
was prejudiced under Strickland by the prosecutors
comments. Contrary to his allegation, the prosecutor did
not specifically mention Albarrans immigration status or
try to inflame the jury by arguing that Albarran was an
illegal immigrant. (R. 3537.) Instead, the prosecutors
argument was an attempt to minimize the significance of
some of the background evidence presented by the defense
during the guilt phase about the poverty Albarran faced in
Cacahuananche, Mexico by noting the opportunities and good
life that Albarran had enjoyed in Huntsville. Simply the
fact that the prosecutor aggressively attempted to minimize
evidence by arguing about facts that that were admitted
into evidence is not prejudicial, let alone improper. See
Minor v. State, 914 So. 2d 372, 426 (Ala. Crim. App.
2004)(A prosecutor as well as defense counsel has a right
to present his impressions from the evidence. He may argue
every legitimate inference from the evidence and may
136

examine, collate, sift, and treat the evidence in his own
way.) Furthermore, Albarran has failed to specifically
plead how he was prejudiced based solely on isolated
comments made during closing arguments given that
statements of counsel in argument to the jury must be
viewed as delivered in the heat of debate; such statements
are usually valued by the jury at their true worth and are
not expected to become factors in the formation of the
verdict. Minor, 914 So. 2d at 417.
facts that, if true, would show that trial counsel was
deficient for not objecting to the prosecutors closing
arguments. Generally, decisions of when and how to raise
objections are generally matters of trial strategy.
Washington, 95 So. 3d at 66. Simply raising a bare
allegation that trial counsel should have objected to
certain comments made by the prosecutor is insufficient.
It is reasonable for trial counsel to refrain from
objecting in closing arguments to refrain from annoying or
distracting the jury. In particular here, where Albarran
has failed to plead specific facts that, if true, would
show why the prosecutors argument was prejudicial,
137

Albarran has also failed to plead facts that, if true,
would show an objection from trial counsel would not have
been overruled. Thus, he has failed to specifically plead
how trial counsel was deficient. See Lee, 44 So. 3d at
1173 (Counsel cannot be held ineffective for failing to
raise an issue that has no merit.). Therefore, because
this entire claim is insufficiently pleaded, it should be
to incompetent interpretation.

counsel was ineffective for failing to object to
incompetent court interpretation.
This claim should be summarily dismissed because is
claim is nothing but a bare allegation. Albarran utterly
fails to plead a specific factual basis in support of his
claim. Albarran fails to plead the specific testimony that
he contends the court-appointed interpreter inaccurately
interpreted. Nor does he plead any specific facts that, if
true, would show how this unidentified testimony was
inaccurately interpreted. Albarran also fails to
specifically plead how the court-appointed interpreters
138

interpretations negatively impacted him and his trial or
that the jury was not otherwise able to understand the gist
of the testimony being translated. Albarran also fails to
specifically plead any facts that, if true, would show how
trial counsel would have been aware of the fact during
trial that there were portions of the interpretation that
were inaccurate, given that the parties and the court were
relying on the interpreter to translate testimony.
Finally, Albarran utterly has failed to plead any facts
that, if true, would establish a reasonable probability
that the outcome of his trial would have been different had
his counsel objected. Albarran fails to plead any facts
concerning what would have constituted an accurate
translation of this unidentified testimony or how this
would have materially altered the testimony presented to
the jury. Thus, because this claim is insufficiently
pleaded, it should be dismissed. Ala. R. Crim. P. 32.7(d).
to improper witness reenactments.

counsel was ineffective for failing to object to two
prosecution witnesses who reenacted their recollections of
his actions during the crime.
139

claim is simply a bare allegation. Albarran has failed to
specifically plead any facts that, if true, would establish
deficient performance or prejudice under Strickland.
As an initial matter, Albarran fails to plead any
specific facts that would show how the mere act of
conducting a demonstrative reenactment with a witness is
improper. Notably, a trial court has discretion to allow
reenactments to recreate a crime or events viewed by a
witness. See Belisle v. State, 11 So. 3d 256, 299 (Ala.
Crim. App. 2007(holding no error where the trial court
directed defendant to lift up shirt for witness to see
defendants tattoo).
Moreover, Albarran fails to specifically plead any
facts that, if true, would show that the alleged
reenactments at issue with the two witnesses here were
inaccurate in any way. In fact, Albarran admits as much in
his petition by noting that it is impossible now to address
the accuracy of the reenactments. (Pet. at 152.)
Albarran also has failed to plead facts indicating what
specific objection trial counsel could have made against
140

the reenactments. Nor does he specifically plead any facts
that, if true, would show that the trial court would have
sustained an objection to these reenactments. See Lee, 44
So. 3d at 1173 (Counsel cannot be held ineffective for
failing to raise an issue that has no merit.). Finally,
would show how he was prejudiced. Instead, Albarran merely
asserts that these reenactments were highly prejudicial
without specifically pleading how was prejudiced or how the
reenactments were improper. This bare, conclusory
allegation of prejudice is simply not sufficient. See
Hyde, 950 So. 2d at 356 (A bare allegation that prejudice
occurred without specific facts indicating how the
petitioner was prejudiced is not sufficient.). Therefore,
because this entire claim is insufficiently pleaded, it
11. The claim that trial counsel failed to file an
in limine motion requesting an instruction to
the audience that no outbursts would be
allowed at the time or after the verdict was
read.

counsel was ineffective for failing to request an
141

instruction to the audience that no outbursts would be
allowed at the time or directly after the verdict was read.
claim is a bare, speculative allegation. Albarran has
failed to plead any facts that, if true, would show that
his trial counsel was deficient or prejudiced under
Strickland.
Albarran has failed to plead any facts that, if true,
would show how trial counsel reasonably would have known
that such an outburst could have occurred to necessitated
filing a formal motion with the trial court other than pure
speculation based on the publicity associated with the
case. Albarran also fails to specifically plead any
authority which requires such a motion to be filed. Nor
has he specifically pleaded facts that, if true, would show
that no competent counsel would have failed to file such a
motion.
Further, Albarran has failed to plead any facts that,
if true, would show that there is a reasonable probability
that the outcome of his penalty phase would have been
different had his trial counsel filed this motion. As the
142

trial court noted, the outburst was relatively quick and
it stopped within two seconds. (R. 3766-3767.) Albarran
has failed to specifically plead how this brief noise from
the audience had any real or tangible effect on the jury.
Although he contends that the jury began penalty phase
proceedings with a clear and recent memory of the
communitys celebratory response to Mr. Albarrans
conviction for capital murder, he fails to plead any
specific facts that, if true, would support his conclusory
allegation. See Hyde, 950 So. 2d at 356. Albarran fails
to specifically plead how the momentary outburst was, in
fact, celebratory or how the jury would have viewed the
outburst as celebratory. Nor does he specifically plead
any facts that, if true, would show that the jury actually
began the penalty phase remembering this brief outburst.
it is due to be dismissed. Ala. R. Crim. P. 32.7(d).
to sleeping jurors remaining on the jury and
by failing to move for a mistrial.

counsel was ineffective for failing to object to sleeping
jurors remaining on the jury. Albarran contends that there
143

were three instances where the trial court informed counsel
for both parties that the court believed there were jurors
sleeping. Albarran also contends that trial counsel was
ineffective for allowing a discussion about a juror who
potentially was sleeping to occur off-the-record.
specifically plead the names of the three jurors he
contends were sleeping. Nor does he plead clear and
specific facts concerning what portion of the trial the
three unidentified jurors were allegedly sleeping.
2

Albarran has also failed to specifically plead facts that,
if true, would show that the three unidentified jurors were
sleeping during an essential portion of the trial. See
Vanpelt v. State, 74 So. 3d 32, 77 (Ala. Crim. App. 2009)
(To prevail on a sleeping-juror claim, the defendant must
show that prejudice resulted from the jury ignoring
essential portions of the trial.)(quoting Durham v.
State, 867 A.2d 176, 17980 (Del. 2005)).

2
Albarran appears to contend in his petition that one of the jurors was
potentially sleeping during closing arguments. But this allegation is
refuted by the record. The discussion at issue (R. 3412) took place prior to
closing arguments. (R. 3528-3664.)
144

Moreover, Albarran has failed to specifically plead
facts that, if true, would establish that his trial counsel
was deficient for failing to object to the jurors who were
allegedly sleeping remaining on the jury. A trial court
has discretion regarding the nature of the intervention
and the remedies for any sleeping that has occurred. If the
sleeping is observed at the outset or when the juror is
beginning to nod off, it is likely that a break or a
stretch will suffice. Vanpelt, 74 So. 3d at 77(citing
Commonwealth v. Dancy, 912 N.E.2d 525, 532 (Mass. App. Ct.
2009)). Notably, the record indicates that after every
instance in which the trial court indicated that there may
have been jurors who possibly were sleeping, the trial
court either took a break in the proceedings and directed
the jurors to stand and stretch or interrupted the
proceedings by giving the jury an instruction to pay
attention. (R. 3020, 3321, 3412-3413.) Thus, because the
trial court properly addressed this issue within its
discretion, trial counsel could not be deficient for
failing to object. See Lee, 44 So. 3d at 1173.
Finally, this claim also should be dismissed because
Albarran has failed to specifically plead how he was
145

prejudiced under Strickland. As an initial matter,
Albarran has failed to plead specific facts that, if true,
would show that these jurors were in fact sleeping.
Contrary to Albarrans allegations, the trial court did not
explicitly state that certain jurors were in fact sleeping.
For example, the trial court told counsel for both parties
that the court would need to keep an eye on one juror who
keeps closing his eye. (R. 3020.) But the trial court
did not state that the juror was actually sleeping and
further noted that he appears to be taking notes and
appears to be attentive. Id.; see also R. 3320 (I dont
know if he was asleep); R. 3414 (I cant conclusively
state with certainty that he was, in fact, asleep.).
Albarran also has failed to plead any additional facts
that, if true, would show that the jurors were sleeping.
Regardless, Albarran has failed to plead facts that, if
true, would show that he was denied the right to a fair
trial. As noted above, the record indicates that the trial
court either took a break or interrupted the jury with an
instruction immediately after each instance where the trial
court thought a juror possibly was sleeping. (R. 3020,
3321, 3412-3413.) Moreover, Albarran fails to plead any
146

facts that, if true, would show a reasonable probability
that the jurors would have been removed, let alone that the
outcome of the trial would have been different, had he
objected. Therefore, because this claim is insufficiently
pleaded, it should be dismissed. Ala. R. Crim. P. 32.7(d).
In regard to his claim that trial counsel should have
made an accurate record of discussions the parties had in
regard to a potentially sleeping juror, this claim is also
Albarran fails to plead any facts concerning what
conversations the parties allegedly had off-the-record or
what different actions his trial counsel would have taken
had these alleged conversations occurred on the record.
Nor does he specifically plead any facts that, if true,
would show how he was prejudiced by not conducting these
discussions on the record. Accordingly, because this
entire claim is a bare allegation that fails to allege a
sufficient factual basis, it should be dismissed. Ala. R.
Crim. P. 32.7(d).
to the courtroom layout.

counsel was ineffective for failing to object to Officer
147

Goldens family sitting in front of the bar of the
courtroom which gave the jury a direct view of the family
members.
Albarrans claim is nothing but a bare allegation.
Albarran fails to specifically plead what objection his
trial counsel should have made or how the fact that Officer
Goldens family was sitting in direct view of the jury was
actually improper. Albarran does not cite any rule or
authority that would prevent family members from sitting in
front of the bar. Notably, although Albarran does not
allege any of Officer Goldens family sat at counsels
table, [i]n Alabama, a representative of a victim has a
statutory right to sit at counsel table. Grimsley v.
State, 678 So. 2d 1197, 1210 (Ala. Crim. App. 1996). Thus,
Albarran has failed to plead any facts that, if true, would
demonstrate that trial counsel was deficient for failing to
make this objection. See Lee, 44 So. 3d at 1173.
Furthermore, Albarran has failed to plead any facts
that, if true, would establish prejudice. Albarran has
failed to specifically plead how the jury otherwise would
148

not have been able to see Officer Goldens family during
proceedings had his trial counsel objected. Albarran also
has failed to specifically plead that Officer Goldens
family made any improper outburst or comments during trial
or that their presence had any effect on the jury
whatsoever. Finally, Albarran has failed to plead any
facts that, if true, would show that there is a reasonable
probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt had his trial
counsel objected to where Officer Goldens family was
seated. Strickland, 466 U.S. at 695. Albarran simply
fails to allege any specific facts that, if true, would
demonstrate prejudice under Strickland. See Hyde, 950 So.
2d at 356 (a bare allegation that prejudice occurred
without specific facts indicating how the petitioner was
prejudiced is not sufficient.). Therefore, because this
claim is insufficiently pleaded, it should be dismissed.
to the States improper closing arguments.

In paragraphs 343-348, Albarran alleges that trial
counsel failed to object to various inflammatory and
misleading closing arguments. Within his claim, Albarran
149

provides a laundry list of arguments he contends his trial
counsel should have objected to, such as comments about
out-of-state experts and mental-health experts, arguments
containing personal opinions, arguments containing facts
not in evidence, and arguments containing incorrect
statements of the law.
claim is a bare allegation. Albarran has simply searched
the record for every instance he contends his trial counsel
should have objected to during closing arguments without
pleading any specific facts to support his claim. But such
conclusory pleading does not assert a sufficient factual
basis under Rule 32.6(b), for [a]n ineffectiveness of
counsel claim does not lend itself to a search of the
record to pick the instances in which an objection could
have been made. Tarver, 629 So. 2d at 19.
For example, Albarran contends that his trial counsel
should have objected to the prosecutions comments about
out-of-state experts and mental-health experts, but he
fails to specifically plead how these comments were
inflammatory, misleading, or prejudicial, nor does he plead
150

what specific objection his trial counsel should have made.
For instance, Albarran fails to plead how the prosecutors
argument that Dr. Silva was bought and paid for was not
legitimate argument to the jury concerning Dr. Silvas
potential bias. (Pet. at 158, citing R. 3549.)
Likewise, Albarran contends his trial counsel should
have objected when the prosecution made arguments
containing personal opinions. But he fails to specifically
plead how these comments constituted improper personal
opinion argument. Albarran also argues that the
prosecution made arguments with incorrect statements of the
law in regard to the mental disease or defect defense, but
he fails to specifically plead how these arguments were
incorrect or improper. Because Albarran has failed to
plead basic, necessary factual allegations to support his
claim, it should be dismissed.
Moreover, Albarran has failed to specifically plead
facts that, if true, would show that trial counsel was
deficient for not objecting to the prosecutors closing
arguments. Generally, decisions of when and how to raise
objections are generally matters of trial strategy.
Washington, 95 So. 3d at 66. Simply raising a bare
151

allegation that trial counsel should have objected to
certain comments made by the prosecutor is insufficient.
Finally, Albarran has failed to plead any specific
facts concerning how he was prejudiced under Strickland.
Albarran has failed to specifically plead how the
prosecutors arguments were not legitimate comments based
on the evidence and law. See Minor, 914 So. 2d at 426 (A
prosecutor as well as defense counsel has a right to
present his impressions from the evidence. He may argue
every legitimate inference from the evidence and may
examine, collate, sift, and treat the evidence in his own
way.) Furthermore, even assuming that the prosecutions
unidentified comments arguably were objectionable, Albarran
has failed to specifically plead how he was prejudiced
based solely on isolated comments made during closing
arguments given that statements of counsel in argument to
the jury must be viewed as delivered in the heat of debate;
such statements are usually valued by the jury at their
true worth and are not expected to become factors in the
formation of the verdict. Minor, 914 So. 2d at 417.
152

C. Albarrans claim that his trial counsel was
ineffective during the penalty phase and
sentencing hearing.

counsel was ineffective during the penalty phase and
sentencing hearing. Within this claim, Albarran raises
several sub-claims which will be addressed by the State
individually below.
1. The claim that trial counsel failed to present
mental retardation evidence to the jury during
the penalty phase proceedings and failed to
adequately litigate their mental retardation
claim.

In paragraphs 349-384, Albarran raises several
allegations concerning his Atkins claim. As an initial
matter, paragraphs 349-355 of this claim are merely
introductory in nature and fail to raise a specific claim
under Rule 32.1 of the Rules of Criminal Procedure.
Accordingly, to the extent these paragraphs constitute a
separate claim, they are insufficiently pleaded and should
be dismissed. Ala. R. Crim. P. 32.6(b).
In regard to the sub-parts within this claim, the State
will address each sub-part individually below.

153

present evidence that he was mentally
retarded to the jury during the penalty
phase for a mental retardation
determination and mitigation
consideration.

counsel was ineffective for failing to present evidence to
the jury during the penalty phase so that the jury could
determine whether he was mentally retarded and ineligible
for the death penalty. Albarran alleges that trial counsel
was ineffective for only presenting brief evidence during
the guilt phase about his alleged mental retardation
without any context. This claim should be dismissed for
several reasons.
First, to the extent that Albarran contends this
evidence should have been presented to the jury to make a
determination as to whether he was mentally retarded and
eligible for the death penalty (Pet. at 164), this claim
should be summarily dismissed because it is facially
without merit and thus, fails to state a claim upon which
relief may be granted. Ala. R. Crim. P. 32.7(d). An
Atkins claim is a legal determination that should be made
by the trial court, not the jury. See Smith v. State, No.
1060427, 2007 WL 1519869, at *13 (Ala. May 25, 2007);
154

Morris v. State, 60 So. 3d 326, 364 (Ala. Crim. App. 2010)
(Alabama does not require that a jury in a capital case
make a determination of whether the defendant was mentally
retarded.). Therefore, Albarrans claim that his trial
counsel should have presented his Atkins claim during the
penalty phase for the jury to decide whether he was
mentally retarded is meritless. Even accepting his
allegations as true, trial counsel could not be deficient
for failing to raise this claim in this context. See Lee,
44 So. 3d at 1173 (Counsel cannot be held ineffective for
failing to raise an issue that has no merit.). Nor has
Albarran pleaded facts that, even accepted as true, could
establish prejudice under Strickland. Therefore, this
claim should be dismissed.
Second, to the extent that Albarran alleges that his
trial counsel was ineffective for failing to present
evidence of his alleged mental retardation as mitigation
evidence, this claim should be dismissed because it is
Albarran entirely fails to plead a specific factual basis
for this claim. Specifically, Albarran has failed to plead
any facts concerning what specific evidence, testimony, or
155

witnesses should have been presented in relation to his
Atkins claim during the penalty phase. Albarran contends
in a conclusory fashion that [e]vidence of his sub-average
intellectual functioning, developmental delays, and
adaptive deficits constituted significant mitigating
evidence. (Pet. at 164.)
But Albarran fails to specifically plead what evidence
or testimony would have shown that he had sub-average
intellectual functioning, developmental delays, or adaptive
deficits. Nor does he plead specific facts concerning how
his trial counsel should have presented this evidence
during the penalty phase. Albarran also fails to plead any
specific facts that, if true, would show a reasonable
probability that the jurys recommendation would have been
any different or that the result of his proceeding would
have been different, given that the trial court heard
evidence of his alleged mental retardation, considered it
as a mitigating circumstance, and still sentenced him to
death. (C. 462; see also Hyde, 950 So. 2d at 356 (a bare
allegation that prejudice occurred without specific facts
indicating how the petitioner was prejudiced is not
sufficient.)). Thus, Albarran has failed plead specific
156

facts that, if true, would establish either deficient
performance or prejudice under Strickland and his claim
should therefore, be dismissed. Ala. R. Crim. P. 32.7(d).
present lay witnesses to testify about
his adaptive deficits.

counsel was ineffective for failing to present direct
evidence of his adaptive deficits when litigating the
Atkins issue. Albarran alleges that his trial counsel
should have presented the testimony of lay witnesses to
testify about their memories of him and their interactions
with him.
Albarran has failed to plead facts, that if true, would
establish that he was prejudiced under Strickland. See
Bryant, 2011 WL 339585, at *6. Specifically, Albarran has
failed to specifically plead how further testimony from lay
witnesses would not have been cumulative of evidence that
was already before the trial court for consideration.
As he admits in his petition, the testimony he contends
should have been presented during the Atkins hearing had
157

already been presented to the trial court through witnesses
during the guilt phase or was summarized through the
testimony of Dr. Weinstein. Specifically, Dr. Weinstein
stated that his testimony concerning Albarrans adaptive
behavior deficits came from his interviews with close
relatives as well as summaries of interviews with numerous
friends and family members that were provided to him. (R.
4374-4376.) Additionally, trial counsel presented
documents which listed the lay witnesses interviewed as
well as a summary of the information Dr. Weinstein learned
from these interviews that related to deficits in adaptive
behavior. (Supp. C. 1017-1027, 1077-1080.)
Given that this information was already presented to
the trial court, Albarran has failed to plead any facts
concerning what new information these witnesses could have
provided or how their testimony would have been more
compelling that the evidence that was already before the
trial court. Although Albarran lists two witnesses who
would have testified that he had socialized with younger
people and had difficulties managing his business (Pet. at
166-167), Albarran fails to plead how this information
would not have been cumulative given that Dr. Weinstein
158

already provided numerous examples of Albarrans deficits
in social skills. (Supp C. 1020-1023.)
In any event, the record indicates that Dr. Weinstein
was able to synthesize and summarize the lay witnesses
testimony to draw out the most compelling points in support
of the Atkins claim. Even assuming as true the fact that
these witnesses would have testified to their observations
of Albarran has an adolescent, Albarran has failed to plead
that the result of the Atkins hearing would have been
different when the substance of their testimony was already
before the trial court.
Moreover, this claim is also insufficiently pleaded
because the information Albarran alleges these witnesses
would have testified to during the hearing did not relate
to current adaptive deficits. Ala. R. Crim. P. 32.6(b).
The American Association on Mental Retardation (AAMR)
defines mental retardation as follows: Mental retardation
refers to substantial limitations in present functioning.
Smith, 2007 WL 1519869, at *8 (quoting Atkins v. Virginia,
536 U.S. 304, 308, n.3 (2002)(emphasis in original)).
Thus, in order for an offender to be considered mentally
159

retarded in the Atkins context, among other things, the
defendant must currently exhibit deficits in adaptive
behavior. Smith, 2007 WL 1519869, at *8 (emphasis added).
Even assuming his allegations as true, none of the
testimony Albarran contends should have been presented
related to current adaptive behavioral deficits. As
Albarran admits in his petition, most of the witness he
contends should have been called would have testified about
observations they made of Albarran when he was an
adolescent living in a small Mexican village. (Pet. at
166.) Thus, this evidence, even if true, would not be
relevant to evidence showing he had current deficits in
adaptive behavior. Moreover, Albarran fails to plead any
facts detailing what relationship these witnesses had to
Albarran or if they had even interacted with him during his
adult life other than a bare allegation relating to the two
witnesses noted above.
Therefore, because this claim is insufficiently
pleaded, it should be summarily dismissed. Ala. R. Crim.
P. 32.7(d).

160

c. The claim that trial counsel failed to
provide expert testimony regarding
important aspects of the mental
retardation criteria.

counsel failed to present sufficient expert testimony to
establish his mental retardation. Albarran further
contends that his expert should have provided the trial
court with evidence that the standard error of measurement
and the Flynn Effect are scientifically valid practices.
Albarran also contends that his trial counsel should have
provided expert testimony that it is important to consider
the C-TONI test and that an expert should have provided
testimony to help the trial court understand the third
prong of the legal definition of mental retardation
concerning the onset of cognitive and adaptive deficits
prior to the age of 18.
refuted by the record and thus, fails to state material
issue of fact or law. Ala. R. Crim. P. 32.7(d). The
record reveals that trial counsel presented this exact
information through the testimony and report of Dr.
Weinstein. For example, Dr. Weinstein explained during his
testimony that, in his opinion, an individuals IQ score
161

should be considered along with the standard deviation and
the Flynn Effect. (R. 4358-4365.) Specifically, Dr.
Weinstein testified that the Flynn Effect was recognized in
the field of mental retardation, in particular the 2007
guidelines published by the American Association of
Intellectual and Developmental Disabilities. Id. at 4364-
4365. Moreover, contrary to Albarrans contention, Dr.
Weinstein also testified about his administration of the C-
TONI test to Albarran, but noted that a consideration of a
non-verbal test like the C-TONI test was not needed because
Albarran understood verbal communication. Id. at 4361.
Finally, Dr. Weinstein provided extensive details
concerning evidence of mental retardation during Albarrans
developmental period through his testimony and report. In
fact, the very facts that Albarran now contends should have
been presented, such as the fact that he was held back in
the second grade, had trouble interacting with family and
peers, had a history of family mental illness, and that his
wife managed their finances, are the exact information that
was contained in Dr. Weinsteins report which was admitted
into evidence during the Atkins hearing. (Supp. C. 1004-
1016.) Therefore, because this claim is refuted by the
162

record, it should be dismissed. Ala. R. Crim. P. 32.7(d);
see McNabb v. State, 991 So. 2d 313, 320 (Ala. Crim. App.
2007)(because this claim was clearly refuted by the
record, summary denial was proper pursuant to Rule 32.7(d),
Ala. R. Crim. P.).
it is insufficiently pleaded for several reasons. Ala. R.
Crim. P. 32.7(d). While he nominally lists the name of an
expert, Albarran fails to specifically plead what
evidence this expert could have provided concerning the
use of standard error of measurement, the Flynn Effect, and
the C-TONI test or why particular importance should have
been placed on these concepts or tests. Notably, the
additional articles and caselaw listed by Albarran in his
brief are from the years 2010-2012, over two years after
the sentencing hearing in 2008. (See Pet. at 168, n. 17,
18.) Thus, Albarran has failed to plead a specific factual
basis that, if true, could establish his trial counsel was
deficient for failing to present this additional evidence.
Further, Albarran has failed to specifically plead
facts concerning what evidence an expert could have
provided about the third prong of the mental retardation
163

definition concerning early onset. In particular, Albarran
has failed to plead any new facts that an expert could have
provided that were not already presented through Dr.
Weinstein. As noted above, the information Albarran lists
in his petition was presented during the Atkins hearing
through Dr. Weinsteins testimony and report. Albarran
simply has failed to plead any additional, specific facts
concerning the onset of mental retardation that could have
been presented. Moreover, Albarran has failed to
specifically plead any facts that, if true, would show a
reasonable probability that the outcome of the Atkins
hearing would have been different had trial counsel
presented this additional information, given that this
information was already before the trial court. See Hyde,
950 So. 2d at 356. Therefore, because this claim is
insufficiently pleaded, it should be dismissed. Ala. R.
Crim. P. 32.7(d).
3

3
Albarrans reference to the Supreme Courts decision in Hall v. Florida, 134
S.Ct. 1986 (2014) does not implicate his case and, to the extent he contends
this decision supports his allegation, his contention is without merit.
First, Albarrans case was already final on direct appeal when Hall was
decided and thus, it cannot be retroactively applied. Second, in any event,
the narrow issue decided in Hall does not apply to Albarran. In Hall, the
Supreme Court held that Floridas rigid rule which precluded consideration
of further evidence of mental retardation if a prisoner had an IQ above 70
was unconstitutional. Hall, 134 S.Ct. at 1990. Here, Alabama does not have
such a rule. Further, Albarran was not prevented from presenting, and did in
fact present, evidence concerning his intellectual functioning and adaptive
164

d. The claim that trial counsel failed to
show why the rebuttal witness and the
trial courts consideration of other
evidence adduced during the guilt and
penalty phases was not appropriate in
determining mental retardation.

counsel was ineffective for failing to rebut the States
rebuttal evidence of two lay witnesses about his adaptive
functioning. Albarran contends that his trial counsel
should have provided expert testimony showing it was
erroneous to rely on isolated evidence to conclude that he
did not have significant adaptive behavior deficits.
claim is a bare allegation devoid of a sufficient factual
basis. Albarran fails to plead additional essential facts
in support of his claim. For example, Albarran fails to
specifically plead any facts citing authority for his
contention that it is improper to rely on or consider lay
witness testimony in making a determination about adaptive
functioning. Albarran merely alleges in a conclusory
fashion that relying on lay witness testimony is contrary

behavior. Further, both the trial court as well as the Court of Criminal
Appeals considered the totality of this evidence. Albarran, 96 So. 3d at
198-200.
165

to any accepted methods. Yet he fails to specifically
plead what these accepted methods are, let alone cite any
scholarly articles, treatises, guidelines, or generally
accepted scientific standards of any kind.
Moreover, Albarran has failed to plead any facts that,
if true, would support his allegation that the trial court
relied only on the testimony of two lay witnesses presented
during the Atkins hearing. Albarran incorrectly assumes in
his allegation that the trial court did not find
substantial deficits in his adaptive behavior based solely
on these two witnesses testimony about what he contends
were isolated behaviors. But the record indicates that
there was a wealth of other evidence outside the testimony
of these two lay witnesses that was before the trial court
demonstrating Albarrans adaptive functioning, such as the
fact that Albarran had written multiple letters to his
family, had his own farm in Mexico, had crossed the border
several times, and had helped raise his daughter. See
Albarran, 96 So. 3d at 200. Albarran simply has failed to
plead any facts that, if true, would support his bare
allegation that the trial court relied solely on the
166

testimony of two lay witnesses in finding that he was not
mentally retarded.
Finally, Albarran had failed to plead any facts that,
if true, would establish that he was prejudiced under
Strickland. More specifically, Albarran has failed to
plead any facts that, if true, would show that had this
additional expert testimony been presented, there is a
reasonable probability the trial court would have found him
to be mentally retarded. Notably, as the Court of Criminal
Appeals noted, Albarrans own expert testified that he had
an I.Q. of 71 and that he has quite a bit of adaptive
functioning. Id. at 198, 199. A defendant must establish
all three prongs of the Ex parte Perkins test to be found
mentally retarded. See Smith, 2007 WL 1519869, at *8 (in
order for an offender to be considered mentally retarded in
the Atkins context, the offender must currently exhibit
subaverage intellectual functioning, currently exhibit
deficits in adaptive behavior, and these problems must have
manifested themselves before the age of 18.). Thus, even
assuming that this additional evidence could have led to a
reasonable probability that Albarran would have been found
to have substantial adaptive functioning deficits, he still
167

has failed to plead a sufficient factual basis to support
his claim that he was mentally retarded given the evidence
in the record showing that he did not have significantly
subaverage intellectual functioning. Therefore, because
this claim is insufficiently pleaded, it should be
rehabilitate their mental retardation
expert.

In paragraph 380, Albarran contends that his trial
counsel was ineffective for failing to be aware of a
Colorado judges findings in a capital case that reflected
negatively on Dr. Weinstein. Albarran further contends
that his trial counsel should have been prepared to
rehabilitate Dr. Weinstein.
claim is a bare allegation. Albarran has failed to plead
any specific facts that, if true, would show that his trial
counsel was deficient under Strickland. For example,
Albarran fails to plead any specific facts concerning how
trial counsel should have been aware of a single judges
findings in Colorado or what trial counsel could have done
168

to discover this information. Nor does he plead facts
concerning what specific actions trial counsel could have
taken to rehabilitate Dr. Weinstein. Albarran fails to
plead any additional questions or topics that trial counsel
could have asked Dr. Weinstein to rehabilitate him.
Albarran also has failed to plead any specific facts
that, if true, would show prejudice under Strickland. In
fact, Albarran merely pleads a single, conclusory sentence
in support of his allegation that he was prejudiced.
Accordingly, because [a] bare allegation that prejudice
occurred without specific facts indicating how the
petitioner was prejudiced is not sufficient, Hyde, 950 So.
2d at 356, this entire claim is insufficiently pleaded and
f. The claim that trial counsel failed to
adequately brief and argue mental
retardation and demand written findings
of fact.

counsel was ineffective for not fully briefing the Atkins
issue before the hearing and for not requesting that the
trial court provide oral or written findings.
169

claim is also nothing but a bare allegation. Albarran
utterly fails to plead specific facts concerning what his
trial counsel should have specifically argued in providing
more briefing on the Atkins issue. Albarran fails to plead
any specific facts on how trial counsel could have more
fully briefed this issue or what specific arguments could
have been made in the additional briefing. Nor does he
specifically plead any factual basis that could show that
there is a reasonable probability that the trial court
would have found him to be mentally retarded had his trial
counsel more thoroughly briefed this issue.
Likewise, Albarran fails to plead any specific facts to
support his claim that his trial counsel should have
requested the trial court to issue specific findings.
Albarran fails to plead any facts that, if true, would show
that the trial court was required to issue oral or written
findings on this issue. Nor does Albarran specifically
plead what his trial counsel could have done differently
had written findings been issued or how he was unable to
secure review of the trial courts decision given that the
Court of Criminal Appeals extensively reviewed this issue
on direct appeal. See Albarran, 96 So. 3d at 197-200.
170

facts that, if true, would establish how he was prejudiced
by the failure to more fully brief this issue or to request
specific findings from the trial court given that, in any
event, the Court of Criminal Appeals held that the trial
court did not abuse its discretion in determining that
Albarran failed to meet his burden of establishing that he
was mentally retarded. Id. at 200. Further, to the extent
that Albarran contends that the Supreme Courts decision in
Hall v. Florida, 134 S.Ct. 1986 (2014) supports his
allegation, his contention is without merit and does not
alleviate the deficient nature of his pleadings. First,
Albarrans case was already final on direct appeal when
Hall was decided and thus, it cannot be retroactively
applied. Second, in any event, the narrow issue decided in
Hall does not apply to Albarran. In Hall, the Supreme
Court held that Floridas rigid rule which precluded
consideration of further evidence of mental retardation if
a prisoner had an IQ above 70 was unconstitutional. Hall,
134 S.Ct. at 1990. Here, Alabama does not have such a
rule. Further, Albarran was not prevented from presenting,
and did in fact present, evidence concerning his
171

intellectual functioning and adaptive behavior. Further,
both the trial court as well as the Court of Criminal
Appeals considered the totality of this evidence.
Albarran, 96 So. 3d at 198-200. Therefore, because this
2. The claim that trial counsel failed to present
mental illness evidence to the jury during the
penalty phase proceedings and failed to
adequately investigate mental illness
evidence.

counsel was ineffective for failing to present evidence of
his mental illness during the penalty phase instead of the
guilt phase.
claim is nothing but a bare allegation. Albarran
completely fails to plead several essential factual
allegations necessary to provide a sufficient factual basis
for his claim. Most notably, Albarran utterly fails to
plead what specific evidence should have been presented
during the penalty phase. Likewise, although Albarran
alleges his trial counsel should have conducted a more
172

effective mental-health investigation, he fails to plead
any specific facts concerning what his trial counsel should
have done or what actions would have made the investigation
more effective.
Additionally, Albarran fails to plead specific facts
concerning what a new experts diagnosis would have been.
For example, Albarran merely alleges in a conclusory
fashion that a new expert would have testified that he has
an array of mental health conditions and indication
that he suffers from a mood disorder, frontal lobe
impairment, or post traumatic stress disorder. (Pet. at
178.) Yet Albarran fails to specifically plead that he has
actually been diagnosed with this issues. Instead, he
merely raises a bare allegation that it is possible he
might have these mental health issues. But such bare
pleading does not meet the heavy pleading standards of Rule
32.6(b) which requires the full factual basis of a claim to
be pled in the petition. Albarran also fails to
specifically plead facts concerning what testimony a new
expert would have provided to show how this unspecified
mental health evidence would have been mitigating.
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Moreover, Albarran has failed to plead any specific
facts that, if true, would establish that his trial counsel
was deficient or that he was prejudiced under Strickland.
As the record indicates, trial counsels strategy during
the guilt phase clearly involved presenting evidence of his
familys history of mental illness to support his insanity
defense. Albarran has failed to plead any facts that, if
true, would show that this strategy was unreasonable, or
that it was unreasonable to not present this type of
evidence again during the penalty phase, given that the
jury already had heard this type of evidence during the
guilt phase. Nor has he specifically pleaded any facts
that, if true, would show how trial counsel could be
deficient for not seeking a second expert opinion after
obtaining Dr. Silvas opinion. See Waldrop v. State, 987
So. 2d 1186, 1193 (Ala. Crim. App. 2007)(Counsel is not
ineffective for failing to shop around for additional
experts.)(citing Smulls v. State, 71 S.W.3d 138, 156 (Mo.
2002)).
Finally, Albarran has failed to specifically plead how
he was prejudiced. Albarran has failed to specifically
plead any new or additional facts or mitigating evidence
174

that could have been presented during the penalty phase
that was not presented during the guilt phase. Although
Albarran incorporates additional paragraphs within this
claim, the allegations contained in these additional
paragraphs involve evidence of a similar nature to what
already was presented to the jury during the guilt phase,
such as the fact that Albarrans family had a history of
mental illness, grew up in an unstable environment, and had
a difficult time in school and with completing simple
tasks. Albarran has failed to plead any facts that, if
true, would establish a reasonable probability that the
outcome of his trial would have been different had this
cumulative evidence been presented during the penalty
phase. See Daniel, 86 So. 3d at 42930 (The failure to
present additional mitigating evidence that is merely
cumulative of that already presented does not rise to the
level of a constitutional violation.). Therefore, because

175

3. The claim that trial counsel failed to fully
present and explain their mitigation evidence
during the penalty phase.

counsel was ineffective for presenting the bulk of their
mitigating evidence during the guilt phase of trial and for
failing to conduct an adequate investigation and
presentation of mitigating evidence during the penalty
phase.
Although Albarran includes a long narrative of character
evidence about his life, this claim is still nothing but a
bare allegation. As an initial matter, Albarran has failed
to plead any facts or cite any authority that, if true,
would show that trial counsel is deficient for relying on
mitigating evidence that was presented during the guilt
phase. Nor has he specifically pleaded facts that, if
true, would establish prejudice under Strickland given that
this evidence was, in any event, still presented to the
jury. These pleading failures alone warrant dismissal.
Nevertheless, the entirety of Albarrans claim is also
insufficiently pleaded.
176

For example, Albarran contends that presenting the bulk
of mitigation evidence during the guilt phase was
ineffective because the jury already had dismissed this
evidence as irrelevant and/or insignificant during the
guilt phase. (Pet. at 180.) But this allegation is pure
speculation unsupported by any sufficient factual
allegations. Albarran fails to plead any specific facts
that, if true, would articulate how mitigating evidence had
already been dismissed by the jury when the jury had not
even been instructed yet on how to consider mitigating
evidence.
Albarran also contends that it was ineffective to
present mitigating evidence during the guilt phase because
it was not accompanied by expert testimony. But this claim
is also insufficiently pleaded. See Lee, 44 So. 3d at
1166-1167 (a petitioner fails to meet the specificity
requirements of Rule 32.6(b), Ala. R. Crim. P., when the
petitioner fails to identify an expert by name or plead the
contents of that expert's expected testimony.). Albarran
fails to plead specific facts concerning the experts
testimony. For instance, Albarran contends that a medical
expert could have testified that there were indications
177

that Albarran suffered from PTSD (Pet. at 189), yet he
fails to specifically plead any facts that, if true, would
show that Albarran actually has been diagnosed with PTSD,
as opposed to just having indications of it.
Likewise, Albarran alleges in a bare fashion that his
expert would have testified that his expert would have
opinion that he had a mental illness that was most likely
inherited. (Pet. at 190.) Yet Albarran fails to
specifically plead what mental illness he has, nor does he
specifically plead facts or testimony that would show how
this unidentified mental illness was genetically inherited.
Albarran also alleges that it was ineffective to
present mitigating evidence during the guilt phase because
trial counsel was limited by evidentiary rules and the
scope of the guilt phase. Yet Albarran fails to
specifically identify any testimony that he was prevented
from presenting during the guilt phase as a result of the
more strict evidentiary rules.
Most importantly, Albarran has failed to specifically
plead any facts that, if true, would establish prejudice
under Strickland. First, Albarran has not specifically
pleaded or identified any new additional facts that should
178

have been presented. A review of the allegations
concerning his family background in his petition
establishes that most of these allegations are cumulative
of the evidence that was presented during trial. See
Daniel, 86 So. 3d at 42930 (The failure to present
additional mitigating evidence that is merely cumulative of
that already presented does not rise to the level of a
constitutional violation.).
Critically, Albarran does not allege that his trial
counsel should have presented a different kind of
mitigating evidence. Nor does he allege new facts
concerning a different type of evidence that was
substantially different from the type of evidence presented
during trial. Instead, Albarrans allegation is limited to
contending that more witnesses should have called to go
into greater detail about the exact same type of evidence
presented during the guilt and penalty phases. For
example, Albarran alleges that Albarran had a family
history of mental illness which caused an unstable home
life, that he worked in restaurants owned by his brothers,
that he exhibited strange, often jealous behavior, while at
work, and that he suffered severe head injuries. Yet these
179

allegations are consistent with the testimony that was
already presented during trial through his family members.
(See R. 2635-2636, 2642-2658, 2689-2691.)
Albarran simply fails to plead any facts that were not
cumulative of the evidence presented during trial. Nor
does he specifically plead facts that, if true, would show
why he was prejudiced by not presenting more cumulative
evidence. A closer examination of Albarrans claim
demonstrates this pleading failure.
For example, Albarran contends his trial counsel should
have presented family witnesses to testify about his stress
in the year leading up to the murders, that he was not
capable of managing a restaurant, and that he and his wife
had arguments. (Pet. at 181.) But this type of evidence
was already presented during the penalty phase. Roberto
Albarran testified that Albarran was very stressed with his
work, his relationship with his wife and life in general.
(R. 3971.) Roberto Albarran also testified that Albarran
had marriage problems with his wife and that Albarran was
not very good at his job and could not handle the functions
of his job. Id. at 3969-3971. Moreover, multiple
180

witnesses also talked about Albarran stress levels and
fights he had with his wife. Id. at 2692-2693, 3954.
Likewise, Albarran contends that his trial counsel
should have presented family witnesses to testify about his
alcohol and drug use. (Pet. at 182.) Yet multiple family
members testified about Albarrans alcohol use and Dr.
Silva testified about his drug use. Albarran fails to
plead how additional testimony on this subject would not
have been cumulative.
Finally, Albarran contends that his family members
should have been called to testify about the poor economic
factors that his family faced and how Albarran worked in
the fields as a young boy and was exposed to pesticides.
(Pet. at 183-185.) But again, this exact type of testimony
was presented during the penalty phase. The universal
theme from the testimony of multiple family members was
that Albarrans family lived in poverty, had little money,
that they lived in a small home with no electricity at
different points in time, and that they often did not have
enough food. (R. 3894, 3899-3900, 3918, 3938, 3949-3950.)
Testimony was also presented that Albarran worked in the
181

fields as a young boy and that he was exposed to
insecticides with no protection. Id. at 3900-3901.
The record shows that the type of evidence Albarran now
alleges should have been presented during trial involved
substantially the same type of evidence that was presented
during trial. Albarran has failed to specifically plead
facts showing how he was prejudiced by the failure to
present more cumulative evidence, even assuming additional
witnesses could have provided more details. Thus, Albarran
has failed to plead clear and specific facts that, if true,
would show prejudiced under Strickland. See Stallworth v.
State, CR091433, 2013 WL 5966914, at *15 (Ala. Crim. App.
November 8, 2013) (The withholding of cumulative testimony
will not ordinarily satisfy the prejudice component of a
claim of ineffective assistance of counsel.); Washington,
95 So. 3d at 52 (holding that the failure to present
additional mitigating evidence that is merely cumulative of
that already presented does not rise to the level of a
constitutional violation.); see also Payne v. Allen, 539
F.3d 1297, 1317 (11th Cir. 2008)(The mere fact that the
family members could have presented more thorough and
graphic detail about the physical abuse Payne suffered and
182

witnessed and his early substance abuse does not render
counsel's performance ineffective.).
In the same fashion, Albarran has failed to
specifically plead how he was prejudiced by the failure to
call an expert during the penalty phase to opine about
these cumulative facts. Notably, the testimony that
Albarran contends a mental health expert would have
provided would have consisted of facts that were cumulative
to what was presented during trial. And Albarran fails to
allege a specific diagnosis or conclusion that the expert
would have provided other than generally opining about the
significance of his background and character.
Finally, Albarran has failed to plead a full factual
basis concerning prejudice because he has failed to plead
any facts concerning the aggravating circumstance in this
case. In assessing prejudice under Strickland relating to
the penalty phase, the question is whether there is a
reasonable probability that, absent the errors, the
sentencer ... would have concluded that the balance of
aggravating and mitigating circumstances did not warrant
death. Strickland, 466 U.S. at 695.
183

Here, the aggravating circumstance in this case was
strong and the trial court found that it clearly
outweighs the mitigating circumstances presented during
trial. (C. 463.) Yet Albarran completely fails to plead
any facts that, if true, would show how the strength of
this aggravating circumstance would have been affected.
Nor does he specifically plead how the additional
mitigating evidence he claims should have been presented
during the penalty phase, even when considered with all the
mitigating evidence already presented during trial, would
have altered the weighing of the aggravating and mitigating
circumstances such that there is a reasonable probability
that he would not be sentenced to death. As such,
Albarrans claim is simply a bare allegation. Accordingly,
4. The claim that trial counsel limited the scope
of mitigating evidence presented during the
penalty phase.

counsel was ineffective for limiting the scope of available
mitigation evidence. Albarran contends that his trial
counsel failed to present mitigation evidence from other
184

witnesses. Albarran also contends that trial counsel
should have presented his Atkins claim during the penalty
phase.
Although Albarran contends more witnesses should have been
presented during the penalty phase and although he
incorporates additional paragraphs containing a narrative
of his life, he completely fails to plead the names of any
additional witnesses who could have testified. See
Mashburn, 2013 WL 3589300, at *60 (in order to satisfy the
requirements in Rule 32.3 and Rule 32.6(b), a Rule 32
petitioner must identify by name the witnesses he believed
should have been called to testify and must plead with
specificity what the testimony of those witnesses would
have been.). Nor does Albarran plead what specific facts
these unidentified witnesses could have testified to during
trial or what specific facts about his life history,
background, and character these witnesses could have
provided.
Albarran also fails to specifically plead how trial
counsel could have located additional witnesses who were
185

from the same small town in Mexico that he was from.
Nor does Albarran specifically plead how this additional
testimony would not have been cumulative of the information
already presented during the penalty phase. See Daniel, 86
So. 3d at 42930. To the extent that Albarran is simply
incorporating the allegations from the previous claim
concerning the witnesses and evidence he contends should
have been presented during the penalty phase, his claim is
insufficiently pleaded for the same reasons noted above.
Accordingly, Albarran simply has failed to plead any facts
that, if true, would establish either deficient performance
or prejudice under Strickland.
Finally, in regard to his claim that his trial counsel
should have presented his Atkins claim during the penalty
phase for mitigation purposes, this claim is also
insufficiently pleaded. Albarran fails to present any
specific facts to support this allegation. Albarran fails
to plead what specific evidence should have been presented
or what witnesses would have testified concerning his
alleged mental retardation during the penalty phase.
Notably, Albarran fails to plead what specific
testimony his expert would have provided about his alleged
186

low intellectual functioning or adaptive deficits. Nor
does he specifically plead facts concerning what testimony
his expert would have provided to show how this
unidentified evidence would have been mitigating.
Moreover, Albarran fails to plead specific facts
concerning what specific facts concerning an alleged mental
illness and his social history his expert would have
testified to during the penalty phase. Nor does he allege
a specific diagnosis that would have been provided by his
expert during the penalty phase. As pleaded, Albarrans
claim is simply a bare allegation.
Finally, Albarran fails to specifically plead how he
was prejudiced given that Albarrans low intelligence and
IQ score was already before the jurys consideration.
During the guilt phase, Dr. Silva testified that Albarran
had an IQ score of 71. (R. 2848-2849.) Accordingly,
because this allegation, as well as this entire claim, is
insufficiently pleaded, this claim should be dismissed.
5. The claim that trial counsel failed to tie
mitigation evidence to his own experiences.

counsel was ineffective for presenting generalized
187

mitigating evidence about his family without relating the
evidence to him personally.
Albarrans claim is a bare allegation. Although Albarran
complains about the testimony trial counsel elicited during
the penalty phase, he fails to plead what specific
testimony should have been presented. Albarran fails to
specifically plead what witnesses had additional
information about his life, what questions trial counsel
should have asked these unidentified witnesses, or what
relevant evidence about his life these witnesses could have
provided.
Likewise, Albarran contends in a conclusory fashion
that his trial counsel should have explained in a better
fashion how evidence of his family history was relevant to
his life, but he fails to specifically plead how trial
counsel could have provided a better explanation or what
specific testimony could have been elicited. Finally,
would show that the testimony trial counsel did present
during the penalty phase irritated the jury and lost their
188

attention. (Pet. at 194.) Albarran simply has failed to
plead any facts that, if true, would establish deficient
performance or prejudice under Strickland. Therefore,
6. The claim that trial counsel failed to call an
expert witness to rebut the prosecutions case
in aggravation and to secure proper jury
charges on aggravation.

counsel was ineffective for failing to present evidence to
rebut evidence that the murder was especially heinous,
atrocious, and cruel (HAC). Albarran contends that his
trial counsel should have done the following: 1) present
the testimony of Dr. James Lauridson to rebut the
conclusion that Officer Golden suffered, 2) present
evidence and statistics showing that the crime did not
qualify as HAC when compared to other crimes, 3) present
additional eyewitness testimony to rebut the evidence that
Officer Golden begged for his life, and 4) present evidence
that Albarran was mentally retarded and cognitively
impaired. Albarran also contends that this trial counsel
was ineffective for failing to request and present proper
jury charges concerning the aggravating circumstance that
189

the murder was especially heinous, atrocious, and cruel
(HAC). Each of these allegations is addressed in turn.
rebut the HAC aggravating circumstance.

In regard to Albarrans claim that his trial counsel
should have presented evidence to rebut the HAC aggravating
circumstance, this claim is facially meritless and fails to
state a material issue of fact or law. Ala. R. Crim. P.
32.7(d). Even assuming his allegations as true concerning
what evidence could have been presented and what witnesses
would have testified to, he has failed to plead a claim
that could show a reasonable probability that either the
jury or the trial court would have found that the HAC
aggravating circumstance did not exist or was only entitled
to little weight. This is so because none of the evidence
Albarran alleges should have been presented would have
disputed the facts adduced at trial that Officer Golden
appreciably suffered, was conscious between the time he was
initially shot and the final fatal shots occurred, and that
he aware of his impending death for an appreciable time.
As the Court of Criminal Appeals has held, In
considering the application of this aggravating
circumstance this Court assessed the following factors: (1)
190

whether the infliction of the physical violence was beyond
that necessary to cause death; (2) whether the victim
experienced appreciable suffering after a swift assault
that ultimately resulted in death; and (3) whether the
victim suffered psychological torture. Albarran, 96 So.
3d at 214, citing Norris v. State, 793 So. 2d 847 (Ala.
Crim. App. 1999).
Under the first factor, the time between at least some
of the injurious acts must be an appreciable lapse of time,
sufficient enough to cause prolonged suffering, and (2) the
victim must be conscious or aware when at least some of the
additional or repeated violence is inflicted. Norris, 793
So. 2d at 854. Notably, the Court of Criminal Appeals has
held that when a defendant deliberately shoots a victim in
the head in a calculated fashion, after the victim has
already been rendered helpless by [prior] gunshots ...,
such extremely wicked or shockingly evil action may be
characterized as especially heinous, atrocious, or cruel.
Mitchell v. State, 84 So. 3d 968, 986 (Ala. Crim. App.
2010).
Under the third factor, psychological torture [under
the third factor] can be inflicted by leaving the victim in
191

his last moments aware of, but helpless to prevent,
impending death. Mitchell, 84 So. 2d at 986, citing
Norris, 793 So. 2d at 85960. Finally, the factor of
psychological torture must have been present for an
appreciable lapse of time, sufficient enough to have caused
prolonged or appreciable suffering, i.e., the period of
suffering must be prolonged enough to separate the crime
from ordinary murders for which the death penalty is not
appropriate. Id.
A review of the record demonstrates that Albarrans
allegations, even accepted as true, are facially without
merit. As the Court of Criminal Appeals has held, the HAC
aggravating circumstance was properly applied to this case.
Albarran, 96 So. 3d at 214. The evidence presented at
trial overwhelming showed that Officer Golden was shot,
fell to the ground, begged for his life, and that Albarran
then walked up to him and shot him in the head twice while
Officer Golden was still conscious.
Tanisha Thomas testified that she heard two popping
sounds while driving by the El Jalisco restaurant, that she
saw Officer Golden backing away from the restaurant and
that a man was shooting at him, and that Officer Golden was
192

hit in the chest and then fell to the ground. (R. 2029.)
Ms. Thomas then testified that after Officer Golden fell to
the ground, he put up his hands and yelled Wait. Id.
Ms. Thomas then testified that the man shot once, Officer
Golden fell back flat on his back, and then the man shot
Officer Golden two more times. Id. at 2030.
William Thomas also testified that he heard gunshots,
saw Officer Golden backing up, and that Albarran shot him
while Officer Golden was backing up. Id. at 2083. Mr.
Thomas testified that once Officer Golden was shot and went
down from the initial shooting, Albarran went up to him and
shot him one time and then a second time. Id. Mr. Thomas
also testified that when Officer Golden went down, he was
seated upright with his arms raised up and then Albarran
shot him again. Id. at 2085, 2088-2089.
Chad Steele testified that he heard gunshots and heard
someone yell Help me twice. Id. at 2064. Mr. Steele said
he looked out the backdoor of his office building to see
Officer Golden sitting on the ground with his back up in an
L shape and one hand raised up in front of him. Id. Mr.
Steele then testified that Albarran took steps towards
Officer Golden and fired more shots. Id. Forensic
193

evidence showed that Albarran fired 11 shots from two
different guns: a .38 caliber Smith & Wesson and a .38
caliber Rossi. Id. at 2467. Forensic evidence also showed
three gunshot wounds to Officer Golden: one in the lower
abdomen and two shots in his head. At least one of the
gunshots to the head showed evidenced of stippling. Id. at
2541. The bullet fragments from the two final gunshot
wounds to the head showed that the shots were fired from
the .38 caliber Rossi. Id. at 2448.
Based on this evidence, the first and third factors
under Norris were established beyond a reasonable doubt.
Here the infliction of the physical violence was beyond
that necessary to cause death. There was an appreciable
lapse of time between the time Officer Golden was first
shot and fell to the ground and the time that Albarran
walked up to him and fired the fatal shots into his head.
See Norris, 793 So. 2d at 854. Moreover, the evidence
showed Officer Golden was conscious before the final shots
to his head occurred. Id. In fact, the facts of this case
fall squarely within the situation where a defendant
deliberately shoots a victim in the head in a calculated
fashion, after the victim has already been rendered
194

helpless by [prior] gunshots and where such extremely
wicked or shockingly evil action may be characterized as
especially heinous, atrocious, or cruel. Mitchell, 84 So.
3d at 986.
Likewise, Officer Golden in his last moments was aware
of, but helpless to prevent, impending death. Norris, 793
So. 2d at 85960. The evidence demonstrated that he was on
the ground sitting up with his arms raised and begged for
his life before the final fatal shots to his head occurred.
Albarrans claim is facially without merit because even
if the additional evidence alleged in his petition was
presented during the penalty phase, there is no reasonable
probability that the evidence noted above would have been
rebutted or that the HAC circumstance would not have been
established. For example, even if Dr. Lauridson provided
all the testimony Albarran alleges, there is no reasonable
probability of a different result. (Pet. at 200.) Even if
Dr. Lauridson testified that Officer Golden lost
consciousness after the final two gunshot wounds to his
head, this does not change the fact that Officer Golden
spent an appreciable amount of time suffering as he sat on
the ground already shot and awaiting the fatal gunshots.
195

And even if Dr. Lauridson would have testified that, in his
opinion, this crime was a two or three on a scale of one to
ten on a torture scale, this does not change the fact that
Officer Golden suffered for an appreciable amount of time.
Likewise, even if trial counsel presented the testimony
of other eyewitnesses like George Rodgers and Ricky Hulgan,
there is no reasonable probability of a different result.
(Pet. at 205.) Albarrans allegations concerning Mr.
Rodgers and Mr. Hulgan is limited to contending that both
witnesses would have testified that they did not hear
Officer Golden say anything after he was shot. But whether
or not they heard Officer Golden say anything has no
bearing on the fact that Officer Golden was shot and
suffered for an appreciable time prior to being fatally
shot in the head. Notably, Albarran does not allege that
either witness would have testified to refute the fact that
Albarran shot Officer Golden with a first round of gunshots
followed by a second round of gunshots moments later.
Further, Albarrans allegation that his trial counsel
should have presented evidence that he is mentally retarded
and has mental impairments is utterly meritless. Even
accepting these allegations as true, such evidence would
196

have had no effect on the consideration of the HAC
aggravating circumstance. For whether or not Albarran had
mental issues has no bearing on whether the murder of
Officer Golden was unnecessarily torturous to the victim.
Ex parte Kyzer, 399 So. 2d 330, 334 (Ala. 1981)(emphasis
added). Accordingly, even assuming all of the facts
alleged by Albarran as true, he cannot show a reasonable
probability that the outcome of the penalty phase or the
trial courts findings concerning the HAC aggravating
circumstance would be different. Thus, he has failed to
plead a facially meritorious claim and it should be
To the extent that Albarran contends that his trial
counsel should have presented statistics comparing his case
to other cases (Pet. at 202), this claim is insufficiently
pleaded. Ala. R. Crim. P. 32.6(b). First, Albarran fails
to plead how trial counsel could have even presented such
statistics given that, as he admits in his petition, the
paper he relies on was published in 2010 after his trial.
Although Albarran contends that the underlying information
was still available, he fails to specifically plead where
such information could be located or how trial counsel
197

would have been aware of it. Albarran also fails to plead
the names of any cases to which he compares his case or
identify any facts in such cases that would support his
bare allegation that his crime was not HAC when compared to
other cases.
facts that, if true, would show that his trial counsel was
deficient in their handling of the HAC aggravating
circumstance. In particular, Albarran has failed to plead
specific facts that, if true, would show that no competent
counsel would have proceeded in the manner Albarran now
alleges in his petition. For example, Albarran fails to
plead any facts that, if true, would show that prevailing
professional norms required the presentation of expert
testimony in this situation or the presentation of
statistical data. In fact, Albarran fails to identify an
Alabama case where similar evidence was presented to rebut
HAC.
Moreover, trial counsels conduct during the penalty
phase cannot be examined in a vacuum. Nor, with limited
resources, can trial counsel pursue every possible line of
defense. As the record indicates, trial counsel presented
198

a wealth of mitigating evidence during both the penalty
phase and guilt phase. Albarran has failed to specifically
plead how trial counsel was ineffective for failing to
pursue evidence to rebut the aggravating circumstance
offered by the state where the record shows that trial
counsel devoted extensive effort to affirmatively
presenting mitigating circumstances during the penalty
phase. Thus, because this claim is insufficiently pleaded,
in addition to failing to plead a material issue as noted
above, this claim should be summarily dismissed. Ala. R.
Crim. P. 32.7(d).
request proper jury charges on HAC.

In regard to the allegation that trial counsel failed
to file a proper HAC jury charge, this claim should be
summarily dismissed because it is facially meritless and
thus, fails to state a claim upon which relief may be
granted. Ala. R. Crim. P. 32.7(d). Albarran contends that
trial counsel should have requested that the trial court
instruct the jury that it must conduct a two-part inquiry
when considering whether there was physical violence that
went beyond that necessary to cause death. (Pet. at
209)(see Norris v. State, 793 So. 2d 847, 854 (Ala. Crim.
199

App. 1999)(noting that (1) the time between at least some
of the injurious acts must be an appreciable lapse of time,
sufficient enough to cause prolonged suffering, and (2) the
victim must be conscious or aware when at least some of the
additional or repeated violence is inflicted.)).
As an initial matter, this claim is facially without
merit based on the fact that the Court of Criminal Appeals
held that the trial courts HAC instructions were proper.
Albarran, 96 So. 3d at 207-208. Specifically, that court
held that the circuit court correctly instructed the jury
regarding the especially heinous, atrocious, or cruel
aggravating circumstance... Id. at 208. Thus, trial
counsel could not be deficient, nor could he be prejudiced,
for failing to request additional instructions or objecting
to the trial courts instructions where the instructions
given were proper. See Lee, 44 So. 3d at 1173 (Counsel
cannot be held ineffective for failing to raise an issue
that has no merit.).
Moreover, although the trial court did not specifically
cite the exact language noted above from Norris, the trial
courts instruction provided the same substantive guidance
as the language in Norris, namely that the infliction of
200

physical violence beyond what is necessary to cause death
must be in a situation where the victim is conscious and
aware that after the initial assault; i.e. that the victim
was aware of his suffering. (R. 4223.) Moreover, even
assuming these allegations as true, there is no reasonable
probability that the outcome of the penalty phase would
have been different had the precise instruction been given
that Albarran now seeks because the evidence demonstrated
that there was an appreciable time to cause suffering
between the injuries and that Officer Golden was aware when
some of the additional violence was inflicted. As the
Court of Criminal Appeals noted in holding that the HAC
aggravating circumstance was properly applied in this case,
Officer Golden attempted to ward off the assault, but his
gun jammed. He was shot and fell to the ground begging for
his life. Albarran walked up to him and shot him twice in
the head. Albarran had two different guns. Eyewitness
testimony showed that Officer Golden was conscious until
the last shots entered his head. Albarran, 96 So. 3d at
214. Thus, because this claim is facially meritless, it

201

when the immigration status of Albarran and
his family members was injected into the
penalty phase proceedings.

counsel was ineffective for failing to object to the trial
courts instruction to the jury, in response to an
objection from trial counsel to the prosecutors closing
argument, during the penalty phase that a fact in the case
was that the Albarran had been deported on one occasion.
Albarran also alleges that his trial counsel was
ineffective for eliciting testimony that he contends was
likely to inflame the passions of the jury.
This entire claim should be dismissed because it is
insufficiently pleaded. Ala. R. Crim. P. 32.6(b). In
regard to the claim that trial counsel failed to object to
the trial courts instruction, Albarran has failed to
specifically plead facts that, if true, would show
deficient performance or prejudice under Strickland. As
Albarran admits, trial counsel objected to the prosecutors
reference in his closing argument to his immigration
status. (R. 4107.) To the extent Albarran contends that
trial counsel should have objected to the trial courts
subsequent instruction, he has failed to plead a sufficient
202

factual basis that, if true, would show there was a
potentially meritorious objection to present. See Lee, 44
So. 3d at 1173 (Counsel cannot be held ineffective for
failing to raise an issue that has no merit.).
As the trial court correctly noted, this fact was in
evidence because testimony was presented during the guilt
phase that Albarran had been deported. (R. 3060-3061,
4109.) Thus, the trial courts instruction that this was a
fact in evidence was correct. Simply the fact that
Albarran now disagrees with the propriety of that testimony
does not change the fact that this testimony was presented
during his trial.
Further, Albarrans claim that the testimony elicited
concerning the fact that he had been deported was improper
is nothing but a bare allegation. Albarran simply fails to
plead a sufficient factual basis that would show this
testimony was prejudicial, let alone improper, given that
it was elicited in the context of challenging Dr. Silvas
opinion that Albarran did not know right from wrong. The
record shows that the prosecutor was not eliciting the
question to encourage the jury to consider an arbitrary
factor, but to challenge Dr. Silvas opinion by showing
203

that Albarran did know right from wrong based on the fact
that he had interactions with law enforcement in the past
in various degrees. (R. 3059-3061.) Thus, he has failed
to specifically plead a factual basis that, if true, would
show how his trial counsel was deficient for failing to
make a meritless objection.
Moreover, Albarran has failed to plead any specific
facts that, if true, could establish prejudice. Albarran
contends in a conclusory fashion that the trial courts
instruction encouraged the jury to consider the fact of his
immigration status in whether to recommend a death
sentence. Yet Albarran fails to plead any specific facts
to support this bare allegation. See Hyde, 950 So. 2d at
356 (a bare allegation that prejudice occurred without
specific facts indicating how the petitioner was prejudiced
is not sufficient.). Albarran fails to plead any facts
showing how the jury was, in fact, encouraged to consider
his immigration status. Notably, the trial courts
instruction never directed or encouraged the jury to
consider his immigration status, but simply clarified, in
response to an objection, that this was a fact in evidence.
204

Thus, because this claim is insufficiently pleaded, it
Albarran also failed to plead a sufficient factual
basis to support his allegation that his trial counsel
enflamed the jury by eliciting testimony about how happy
Albarrans sister and brother were that their children were
born in the United States. This claim simply is nothing
but a bare, speculative, conclusory allegation. Albarrans
claim is limited simply to plucking a few isolated comments
out-of-context from the lengthy testimony of his family
members. But Albarran fails to plead any facts that, if
true, would show that trial counsel was objectively
unreasonable for eliciting this testimony or that this
testimony was inconsistent with trial counsels overall
theme during the penalty phase of explaining his family
background to the jury.
Albarran also fails to plead any facts that, if true,
would establish how this testimony had a potential to
inflame the passions of the jury. Instead, Albarran
asserts only one conclusory sentence in which he speculates
that the passions of certain jurors who resented non-
citizens receiving benefits could have been aroused. Yet
205

Albarran fails to plead any facts that, if true, would show
that any juror had any tendency to harbor these feelings to
support his speculative assertion. Finally, Albarran fails
to specifically plead how he was prejudiced under
Strickland given that the trial court instructed the jury
that [y]our determination concerning the existence of
mitigating circumstances should not, however, be influenced
by passion, prejudice, or any other arbitrary factor. You
determination should be based solely on the evidence
presented and the law as I have explained it to you. And
that relates to both aggravating circumstances and
mitigating circumstances. (R. 4228.) Therefore, because
to continued incompetent interpretation.

counsel failed to object to continued interpretation
problems.
claim is a bare allegation. Albarran only provides one
example of a situation where the translator had difficulty
206

translate a single word. Albarran fails to specifically
plead how this one instance prejudiced him given the huge
volume of testimony that was translated. Whats more,
Albarran completely fails to plead specific facts showing
how he was prejudiced by any alleged incompetent
translation. Albarran fails to plead any specific evidence
or testimony that he was unable to present. Instead,
Albarran speculates that the jury was left with a bad
impression. But he utterly fails to plead any specific
factual basis to support this speculation. Therefore,
9. The claim that trial counsel failed to timely
and adequately litigate their proposed jury
charges.

counsel was ineffective for failing to file timely proposed
jury charges and for failing to accurately research the law
in relation to the instructions.
Albarran utterly has failed to plead any clear and specific
facts in support of his claim. First, Albarran fails to
207

specifically identify any specific proposed jury
instructions, let alone plead what jury instructions his
trial counsel ineffectively presented. Although Albarran
incorporates another section of ineffective assistance of
counsel claims within this claim, he fails to still
specifically plead facts concerning how the jury charges
were ineffectively litigated. Moreover, to the extent
Albarran simply incorporates the facts from a separate
claim above, this claim should be dismissed for similar
reasons.
Second, Albarran fails to specifically plead what
errors of law the unidentified instructions contained.
Third, Albarran fails to plead specific facts that, if
true, would show how trial counsel could have corrected any
alleged errors in the instructions or what specific
language would have made the instructions accurate.
Finally, Albarran fails to specifically plead any facts
that, if true, would show a reasonable probability that the
trial court would have given the proposed jury instructions
had they been more timely filed. Albarran fails to plead
any specific facts showing how the allegedly untimely
filing had any impact whatsoever on the trial courts
208

decision to reject Albarrans proposed jury instructions.
it should be dismissed. Ala. R. Crim. P. 32.7(d).
during sentencing proceedings.

counsel was ineffective for failing to present a compelling
argument that life without parole was the appropriate
sentence.
Although Albarran complains that his trial counsels
sentencing memorandum listed duplicative, overlapping, or
poorly supported mitigating circumstances, he fails to
specifically plead what mitigating circumstances were
duplicative or overlapping. Nor does he specifically plead
what additional factual basis could have been presented by
trial counsel to support these unidentified mitigating
circumstances. Finally, Albarran fails to plead any
specific facts that, if true, would establish a reasonable
probability that the trial court would not have found that
the aggravating circumstances outweighed the mitigating
circumstances had trial counsel not presented repetitive or
209

unsupported mitigating circumstances. Notably, although
Albarran incorporates paragraphs containing a generalized
narrative of his life history, he fails to plead what
specific aspects of his background or his character should
have been presented and what witnesses could have provided
this unspecified evidence. To that extent, Albarrans
current claim appears to simply be a regurgitation of his
earlier claim of ineffective assistance of counsel and
should be dismissed for similar reasons. In any event,
Albarran fails to specifically plead how this evidence
would not have been cumulative of the evidence already
presented during trial. Therefore, because this claim is
Crim. P. 32.7(d).
adequately litigate juror misconduct at the
sentencing hearing.

counsel failed to effectively litigate a juror misconduct
issue during the sentencing hearing relating to the juror
foreperson.
210

Albarran has failed to plead several essential factual
allegations in several areas. First, although Albarran
contends his trial counsel was ineffective for failing to
call the juror and/or her husband to testify, he fails to
plead what specific evidence or testimony these witnesses
could have provided. Second, Albarran fails to
specifically plead what evidence from the record allegedly
rebutted the prosecutions argument during the hearing that
the juror in question would not have been struck solely
because she had been the victim of a crime. Although
Albarran alleges that the fact that trial counsel requested
background checks on all potential jurors supports the
conclusion that a juror could have been struck based on the
crime victim status, Albarran fails to specifically plead
how this isolated fact, even if true, would show that the
juror would have been struck. Simply because trial counsel
requested background records prior to voir dire does not
mean that a jurors criminal history was material to trial
counsels striking process after voir dire occurred and
after trial counsel heard the responses from the jury
venire. Albarran simply fails to plead any facts to
support this speculative assertion.
211

facts that, if true, would establish prejudice under
Strickland, given that the Alabama Court of Criminal
Appeals addressed this issue on direct appeal under
preserved-error review and held that the trial court did
not abuse its discretion in denying relief on this claim of
juror misconduct. See Albarran, 96 So. 3d at 193-197.
Similarly, Albarran has failed to plead any specific facts
in his petition that, if true, would show how he might have
been prejudiced by the alleged juror misconduct, let alone
how he was prejudiced under Strickland. Therefore, because
D. The claim that trial counsel was ineffective in
litigating the motion for new trial and filing the
appellate paperwork.

counsel was ineffective for failing to consent to an
extension of the time for the trial court to issue a ruling
on the motion for new trial under Rule 24.4 of the Rules of
Criminal Procedure. Albarran also contends that his trial
counsel was ineffective for failing to object to the trial
courts denial of his motion for new trial on the basis
212

that he was not given a full opportunity to brief the
issues. Finally, Albarran alleges that his trial counsel
was ineffective for failing to supplement the appellate
record with transcripts from two hearings on the change of
venue issue, the Spanish language portion of the
proceedings, the trial courts discussions about a
potential sleeping juror, and the parties positions on
litigating the motion for new trial.
entire claim is nothing but a bare allegation devoid of any
specific factual basis. For example, while Albarran
contends his trial counsel should have consented to an
extension of time on appeal, he fails to plead any specific
facts concerning what his trial counsel should have done or
what specific arguments trial counsel could have made that
had not already been presented had this time period been
extended. Albarran also fails to specifically plead any
facts that, if true, would establish that it was
objectively unreasonable to fail to consent to an
extension. Furthermore, Albarran fails to plead any
specific facts that, if true, would show there was a
213

reasonable probability that the trial court would have
granted a new trial had additional time for argument been
granted.
Likewise, Albarran fails to plead any specific facts
that, if true, would establish deficient performance or
prejudice concerning his claim that the trial court denied
his motion for new trial without allowing a full
opportunity for briefing. Albarran fails to plead any
specific facts concerning what specific arguments he would
have raised in additional briefing or how there was any
probability, let alone a reasonable one, that the outcome
of his trial would have been different. Although Albarran
vaguely references a claim of juror misconduct, he fails to
specifically plead any facts concerning how he was
prejudiced given that the trial court did conduct a hearing
on this claim and denied relief which was affirmed on
direct appeal. See Albarran, 96 So. 3d at 193-197.
Finally, Albarran has failed to plead specific facts in
support of his claim that trial counsel failed to
effectively supplement the record on appeal. Albarran
utterly fails to plead any specific facts concerning the
substance of the hearings that he contends should have been
214

included in the record. Albarran utterly fails to plead
any facts concerning what different arguments could have
been raised on appeal had these additional hearings been
included in the record, nor does he plead any specific
that he would have been granted relief on appeal had the
record included these additional transcripts. Accordingly,
because this entire claim is a bare allegation, it is due
to be dismissed. Ala. R. Crim. P. 32.7(d).
E. The claim that trial counsel was ineffective for
failing to object to violations of international
law.

In paragraph 485, Albarran contends that his trial
counsel was ineffective for failing to object on the
grounds that his conviction and sentence violated
international law.
Albarran fails to plead any specific facts in support of
his claim. Albarran fails to plead what specific arguments
his trial counsel should have made or what specific
international laws he contends were violated. Most
importantly, Albarran has failed to plead any facts that,
215

if true, would demonstrate a reasonable probability the
outcome of his trial would have been different had his
trial counsel made these objections. Thus, because this
F. The claim that trial counsel was ineffective at
all stages of the proceedings.

In paragraph 486-491, Albarran alleges that
individually and cumulatively, trial counsels errors
prejudiced him.
Albarran utterly fails to plead any specific facts in
support of this claim. Albarran has failed to plead any
facts that, if true, would establish deficient performance
or prejudice under Strickland. For example, while he
contends that individual instances of trial counsels
errors should be considered when assessing the cumulative
effect of counsels performance, he fails to specifically
plead what specific instances should be considered. Thus,
216

it fails to state a material issue. Ala. R. Crim. P.
32.7(d). As the Alabama Court of Criminal Appeals has held
[o]ther states and federal courts are not in agreement as
to whether the cumulative effect analysis applies to
Strickland claims; this Court has also stated: We can find
no case where Alabama appellate courts have applied the
cumulative-effect analysis to claims of ineffective
assistance of counsel. Mashburn v. State, CR110321,
2013 WL 3589300, at *16 (Ala. Crim. App. July 12,
2013)(citations omitted). Albarrans claim is without
merit because he conflates the concept of combining
multiple, but separate claims of ineffective assistance of
counsel with the requirement that a court must review the
entire record as a whole in assessing a specific claim of
ineffective assistance of counsel. Therefore, because this
claim is facially meritless, it should be dismissed. Ala.
R. Crim. P. 32.7(d).
III. ALBARRANS CLAIM THAT HIS APPELLATE COUNSEL RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL.

In paragraphs 492-499, Albarran contends that his
appellate counsel was ineffective for failing to complete
217

the record on appeal and for failing to raise certain
grounds for relief on appeal.
Albarran has failed to plead any specific factual basis for
his claim, but instead merely provides a laundry list of
issues he contends should have been raised on appeal or
should have been included in the appellate record. For
example, Albarran merely recites a list of hearings that he
contends were not transcribed and included in the record on
appeal. Yet he fails to plead any facts concerning what
the transcripts would have contained, how the inclusion of
these transcripts in the record would have changed any
arguments he made on appeal, or, more importantly, how
there was a reasonable probability that he would have been
entitled to relief on appeal. See Jackson v. State, CR12
0668, 2013 WL 4710399, at *12 (Ala. Crim. App. August 30,
2013)(holding that claim that appellate counsel was
ineffective for failing to order the complete record on
appeal failed to meet specificity requirements of Rule
32.6(b) where petitioner did not explain how the inclusion
of those items in the record would have aided him on direct
218

appeal nor did he specify how he was prejudiced by their
absence.). Albarran simply fails to plead any facts to
support his bare allegation that the missing transcriptions
of these proceedings were critical ones. (Pet. at 173.)
Likewise, Albarran fails to plead any facts to support
his claim that his appellate counsel was ineffective in
failing to raise allegedly meritorious claims on appeal.
Albarran merely provides a list of claims without pleading
any facts concerning what specific arguments his appellate
counsel should have raised in support of these claims or
any facts that, if true, would show a reasonable
probability that he would have prevailed on appeal had
these arguments been raised. See Whitson v. State, 109 So.
3d 665, 672 (Ala. Crim. App. 2012)(One claiming
ineffective appellate counsel must show prejudice, i.e.,
the reasonable probability that, but for counsel's errors,
the petitioner would have prevailed on appeal.).

219

IV. ALBARRANS CLAIM THAT HE WAS INCOMPETENT TO STAND TRIAL
AND THAT THE TRIAL COURT ERRED IN NOT GRANTING HIM A
COMPETENCY HEARING.

In paragraphs 500-504, Albarran contends that he was
incompetent to stand trial. Albarran also alleges that the
trial court erred in not conducting a competency hearing.
This claim should be dismissed for several reasons.
In regard to his claim that he was in fact incompetent
to stand trial, this claim should be summarily dismissed
because it is insufficiently pleaded. Ala. R. Crim. P.
32.6(b). Albarran has failed to plead any specific facts
that, if true, would establish that he was in fact
incompetent. Even assuming the facts that Albarran has
incorporated within this claim, Albarran has failed to
plead any facts at any point in his petition that, if true,
would establish that he was incompetent to stand trial.
Instead, Albarrans substantive allegation is simply a
bare, conclusory allegation. Therefore, this claim should
In regard to Albarrans claim that the trial court
erred in failing to order a competency hearing, this
specific claim should be dismissed because it is
procedurally barred. Ala. R. Crim. P. 32.2(a) (3) and (5);
220

see also Nicks v. State, 783 So. 2d 895, 906-907 (Ala.
Crim. App. 1999)(holding that a claim that the trial court
erred in not conducting a competency hearing was
procedurally barred under Rule 32.2(a) (3) and (5)).
V. ALBARRANS CLAIM THAT HIS CONVICTION AND SENTENCE
SHOULD BE REVERSED BECAUSE THE TRIAL PROCEEDINGS WERE
INFECTED WITH UNLAWFUL BIAS.

court erred in improperly allowing evidence of his
ethnicity and immigration status to be admitted into
evidence during trial.
procedurally barred from review. Ala. R. Crim. P.
32.2(a)(2) and (4). Albarran challenged the admission of
testimony about his immigration status at trial and on
direct appeal. See Albarran, 96 So. 3d at 163-166.
Therefore, because this claim was raised and addressed at
trial and on direct appeal, it is procedurally barred from
review and should therefore be dismissed. Ala. R. Crim. P.
32.7(d).
VI. ALBARRANS CLAIM THAT HIS DEATH SENTENCE SHOULD BE
REVERSED BECAUSE HE IS MENTALLY RETARDED.

In paragraphs 513-517, Albarran contends that he is
mentally retarded.
221

procedurally barred. Ala. R. Crim. P. 32.2(a)(2) and (4);
see Yeomans v. State, CR100095, 2013 WL 1284361, at *25
(Ala. Crim. App. March 29, 2013)(holding that because
Atkins issue was raised on direct appeal and addressed on
the merits, it was procedurally barred under Ala. R. Crim.
P. 32.2(a)(4)). Albarran raised this issue at trial and on
appeal and the Court of Criminal Appeals held that the
trial court did not abuse its discretion in finding that
Albarran failed to establish by a preponderance of the
evidence that he is mentally retarded. Albarran, 96 So. 3d
at 197-200. Therefore, because this claim was raised and
addressed on the merits at trial and on direct appeal, it
is procedurally barred and should be summarily dismissed.
Alternatively, this claim should be summarily dismissed
32.6(b). Albarran has failed to plead specific facts at
any place in his petition that, if true, would establish
that he meets all three factors set out in Ex parte
Perkins, 851 So. 2d 453 (Ala. 2002). Albarran merely
alleges in a conclusory fashion that he meets all three
222

Perkins factors without pleading specific facts that, if
true, would show how he meets these factors - particularly
given the Court of Criminal Appeals held on direct appeal
that the trial court did not abuse its discretion in
finding that Albarran failed to establish that he was
mentally retarded. Therefore, because this claim is also
insufficiently pleaded, it is due to be dismissed for this
additional reason. Ala. R. Crim. P. 32.7(d).
VII. THE CLAIM THAT HIS CONVICTION AND SENTENCE ARE
UNCONSTITUTIONAL BECAUSE THE TRIAL COURT FAILED TO
ENSURE COMPETENT INTERPRETATION OF THE PROCEEDINGS.

court erred by failing to locate and employ competent
interpretation.
procedurally barred. Ala. R. Crim. P. 32.2(a)(3) and (5).
Specifically, this claim could have been raised at trial or
on direct appeal.
In the alternative, this claim should be dismissed
32.6(b). Albarran utterly fails to plead any specific
facts that, if true, would show how he was prejudiced.
Therefore, this claim should be dismissed. Ala. R. Crim.
223

P. 32.7(d).
VIII. ALBARRANS CLAIM THAT HIS CONVICTION AND SENTENCE
SHOULD BE OVERTURNED BECAUSE THE JURY WAS NOT
CHARGED ON EVERY ELEMENT OF CAPITAL MURDER OF A
POLICE OFFICER.

court erred in failing to charge the jury on every element
of capital murder under Section 13A-5-40(a)(5).
This claim is procedurally barred because it could have
been, but was not, raised at trial and on appeal. Although
Albarran contends that this claim is jurisdictional, his
claim is without merit. Albarrans claim does not involved
the jurisdiction of the trial court to impose a sentence of
death, but instead relates to an allegation concerning the
trial courts jury charges a non-jurisdictional claim
that could have been challenged on direct appeal.
Therefore, because it is procedurally barred, it should be
it is facially without merit and thus, fails to state a
material issue. Ala. R. Crim. P. 32.7(d). Albarran fails
to plead any authority which holds that the instruction
224

given by the trial court was erroneous. Therefore, this
claim is likewise due to be dismissed for this alternative
reason as well. Ala. R. Crim. P. 32.7(d).
IX. ALBARRANS CLAIM THAT HIS CONVICTION AND SENTENCE
SHOULD BE REVERSED BECAUSE THE STATE WITHHELD AND
BELATEDLY DISCLOSED EXCULPATORY EVIDENCE.

In paragraphs 531-538, Albarran contends that the State
violated Brady v. Maryland, 373 U.S. 83 (1983). In support
of his claim, Albarran merely provides a list of categories
of items he speculates the State may have withheld.
This claim could have been, but was not, raised at trial or
on direct appeal. Albarrans allegations do not contain
factual allegations of a specific act of suppression or
specific evidence that was allegedly suppressed. Instead,
he merely lists generalized categories of evidence that he
speculates may have been withheld. On its face, all of the
items of evidence within this claim involve generic
evidence that could have been raised in a Brady claim at
trial or on appeal. Notably, many of the things he
contends were suppressed involved evidence or information
that he was clearly aware of at the time of trial or had
225

access to himself at the time of trial, such as the
existence of his Nissan Sentra or information relating to
his prior arrests. Similarly, other items of alleged
evidence within his claim certainly could have been raised
in a Brady motion at trial or on appeal, such as
handwritten notes of law enforcement or reports of internal
investigations. Therefore, because this claim could have
been raised at trial or on appeal, this claim is
In the alternative, this claim should be summarily
dismissed because it is insufficiently pleaded. Ala. R.
Crim. P. 32.6(b). Albarrans claim is nothing but pure
speculation. Albarran fails to plead any specific factual
basis for his claim, but simply provides a laundry list of
categories of evidence he contends the State withheld. Yet
Albarran fails to plead how these allegedly withheld pieces
of evidence meet the three requirements of establishing a
Brady violation. Albarran fails to specifically plead how
much of this information was not already available to him
or known to him at the time of trial or how these
unspecified categories of evidence would have been
favorable or material. Therefore, because this claim is
226

also insufficiently pleaded, it is due to be dismissed for
this alternative reason as well. Ala. R. Crim. P. 32.7(d).
X. ALBARRANS CLAIM THAT RULE 32 PROCEDURES VIOLATE HIS
CONSTITUTIONAL RIGHTS.

In paragraphs 539-541, Albarran alleges that Alabamas
Rule 32 system violates his constitutional rights.
Albarran has failed to plead an actionable claim within
this allegation. Most of Albarrans claim is limited
simply to citing dicta from the United States Supreme Court
or American Bar Association reports in an effort to
disparage Alabamas Rule 32 process. Yet he fails to
specifically plead facts concerning what specific aspect of
the Rule 32 process violates his rights and what specific
rights are violated.
To the extent that Albarran alleges that Alabamas
failure to provide appointed counsel or funding for
indigent defendants in Rule 32 proceedings violates his
rights, this claim should be summarily dismissed because it
fails to state a material issue. Ala. R. Crim. P. 32.7(d).
Contrary to his facially meritless allegation, Section 15-
12-23 of the Code of Alabama specifically provides
227

discretion to the trial court to appoint counsel in post-
conviction cases and further provides that the cap on
compensation may be waived for good cause. Therefore,
because this claim is meritless, it should be dismissed.
XI. ALBARRANS CLAIM THAT THE CUMULATIVE EFFECT OF ALL
ERRORS DENIED HIM A FAIR TRIAL.

In paragraphs 542-546, Albarran alleges that the errors
at trial, both individually and cumulatively, violated his
rights.
Albarran has failed to specifically plead any facts
concerning what specific errors he contends cumulatively
should lead to a reversal. Although Albarran has re-
alleged all of the claims in his petition in this one
claim, he has failed to specifically plead facts concerning
what specific errors rise to the level of a reversal, given
that he was failed to plead any facially meritorious claims
in his petition. See Woodward v. State, CR080145, 2011
WL 6278294, at *61 (Ala. Crim. App. December 16, 2011)
(When no one instance amounts to error at all (as
distinguished from error not sufficiently prejudicial to be
228

reversible), the cumulative effect cannot warrant
reversal.)(quoting Ex parte Woods, 789 So. 2d 941, 94243
n. 1 (Ala. 2001)). Therefore, because this claim is
Crim. P. 32.7(d).
CONCLUSION
For the foregoing reasons, Albarran is not entitled to
a new trial and the State respectfully requests that this
Court summarily dismiss the claims raised in Albarrans
amended Rule 32 petition and deny Albarrans prayer for
relief. In the alternative, all of Albarrans claims are
denied.
Respectfully submitted,
Luther Strange
Attorney General

/s/ Thomas R. Govan, Jr.
Thomas R. Govan, Jr.
Assistant Attorney General
Counsel of Record *

State of Alabama
Office of the Attorney General
501 Washington Ave
Montgomery, AL 36130-0152
(334) 242-7455
July 28, 2014 tgovan@ago.state.al.us
229

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of July 2014, I
electronically filed a copy of the foregoing with the Clerk
of the Court, and I further certify that I served a copy
upon counsel for the Petitioner addressed as follows:

Joseph T. Flood
flood.joseph7@gmail.com

Jennifer P. Giddings
jengiddings@kuykendall-law.com

Skyla Olds
Skyla.olds@gmail.com

/s/ Thomas R. Govan, Jr.
Thomas R. Govan, Jr.
Assistant Attorney General
Counsel of Record *

ADDRESS OF COUNSEL:

Office of the Attorney General
Capital Litigation Division
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7455
tgovan@ago.state.al.us

Albarran State Motion To Dismiss

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Albarran State Motion To Dismiss

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

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