James William McGowan v. State of Alabama (2026)

James William McGowan, an inmate on Alabama's death row, appeals the Conecuh Circuit Court's judgment either dismissing or denying his claims for postconviction relief under Rule 32, Ala. R. Crim. P. For the reasons explained below, we affirm the circuit court's summary dismissal of McGowan's non-Atkins claims for relief because they were insufficiently pleaded, precluded, and without merit. We also affirm the circuit court's denial of McGowan's claim for postconviction relief after an evidentiary hearing based on his failure to prove by a preponderance of the evidence that he is intellectually disabled and, thus, cannot be executed under Atkins v. Virginia, 536 U.S. 304 (2002).

Facts and Procedural History

“In a calculated and premeditated manner, McGowan brutally bludgeoned to death an elderly couple in their home.” McGowan v. State, 990 So. 2d 931, 1007 (Ala. Crim. App. 2003). And, on April 25, 1996, a jury found him guilty of two counts of capital murder. (TC. 387-88.)¹ McGowan was found guilty of the capital murder of two or more people, Hiram E. Johnson and Mamie Lucille Johnson, by one act or pursuant to one scheme or course of conduct, a violation of § 13A-5-40(a)(10), Ala. Code 1975, and the capital murder of Hiram Johnson during a robbery in the first degree of Mr. Johnson's billfold, a violation of § 13A-5-40(a)(2), Ala. Code 1975. (TC. 387-88.) The jury, by a vote of seven to five, recommended that McGowan be sentenced to life imprisonment without the possibility of parole. (TC. 3898.) The trial court, however, decided to override the jury's recommendation and sentenced McGowan to death, finding that the aggravating circumstances proved by the State outweighed the mitigating circumstances presented by the defense. (TC. 401-02.) On direct appeal, this Court remanded the case to the trial court to “enter a revised sentencing order containing written findings stating specific reasons for giving the jury's recommendation the consideration it gave it.” McGowan, 990 So. 3d at 997. On return to remand, this Court affirmed McGowan's convictions and death sentence. Id. at 1007. Both the Alabama Supreme Court and the United States Supreme Court denied McGowan's petitions for a writ of certiorari. And, on February 22, 2008, the certificate of judgment was entered.

The facts of McGowan's crimes were set forth in this Court's opinion affirming his capital-murder convictions and death sentence on direct appeal. The testimony of McGowan's accomplice, Dedree Crane, was set forth as follows:

“According to Dedree Crane, McGowan picked her up at her parents’ house near Castleberry about noon on July 18, [1994].2 After leaving in a blue Toyota automobile, they smoked almost all of the supply of crack cocaine McGowan had in his possession -- about $150 worth. After McGowan purchased an additional $50 of crack cocaine and they had smoked that, McGowan pawned Crane's ring for $20 and they bought more crack cocaine.

“After they had smoked some of the last cocaine they had purchased, they went to Barry Harper's house between 3:30 p.m. and 4:00 p.m. There, Crane and McGowan smoked the rest of the crack cocaine, and Crane had oral sex with Harper in exchange for money so she and McGowan could buy more crack cocaine. They left, bought more crack cocaine, and smoked it. Then they went back to Harper's, McGowan concocted a story, and Harper gave them $125.

“After buying more crack cocaine and smoking most of that, they tried to get more money from James Robert Pitts. However, he would not give them any, so they decided to return to Harper's house. On the way, McGowan told Crane that ‘he felt like just knocking somebody in the head, you know, to try to get some money somewhere’ to purchase more crack cocaine. When they arrived at Harper's house, ‘some guys in a van’ were there talking to Harper. When the men left, Harper and McGowan went into Harper's house. Crane followed at McGowan's direction. Inside, she told Harper that she needed to talk to him. After he approached her, McGowan hit him in the head from behind with a hammer. Harper resisted McGowan's attack until McGowan restrained him on the floor. After McGowan hit Harper in the head about four more times with the hammer, Crane went into the kitchen. After a time, McGowan came into the kitchen and handed Crane a wallet, which she put into her pocket. After reaching into a kitchen drawer, McGowan returned to the living room. Several minutes after she left Harper's house, McGowan followed. He was carrying a towel, the hammer, the shirt he had been wearing, and a large plastic bag. Blood was on his shirt, the legs of his pants, and his shoes. Harper died as a result of the injuries sustained.[3]

“As they were driving away, McGowan handed Crane the hammer, and she threw it out of the car window. He had her take the money -- $165 -- from Harper's wallet. They then went to a Shell gasoline service station where McGowan cut the legs off of the pants he was wearing and threw away his bloody shirt, the legs of his bloody pants, Harper's wallet, the towel from Harper's house, and the cloth Crane had used to hold the hammer as she threw it from the car window.

“After leaving the Shell station, McGowan and Crane bought more crack cocaine and smoked it. While riding toward Evergreen, McGowan told Crane that ‘he knew a place where we could go and get some more money’ and ‘that ․ it would be a couple that ․ he would have to kill.’ Then they went to Frank Porter's house; Porter gave McGowan a hammer, ostensibly to repair McGowan's vehicle; and a blue and green plaid shirt.

“They then went to the Johnsons’ house. When Mr. Johnson came to the door, McGowan told him that he wanted to talk to him about a gun McGowan had pawned to Mr. Johnson. Mr. Johnson then invited them in. They went into the living room, but McGowan explained that he had left his car lights on, so he went back outside. He returned shortly and, when Mr. Johnson turned around, McGowan hit him on top of his head with a hammer. Crane said that after McGowan had hit Mr. Johnson three times and she saw Mrs. Johnson trying to get up from her bed, Crane ran out of the house. She went back inside when McGowan called her name. Mr. Johnson was on the floor; he was still. From the bedroom, McGowan instructed her to help him find Mrs. Johnson's purse. She went into the bedroom, but did not find the purse.

“Crane then went outside and waited for McGowan in the car. After about five minutes, she could see McGowan's silhouette through the bedroom window, raising the hammer and bringing it down. After several more minutes, he came out and got into the car. He handed her a billfold and instructed her to go through its contents. She found Mr. Johnson's driver's license and a little more than $500 in cash. She gave the money to McGowan. Later, she threw the hammer, the wallet, and the contents of the wallet out of the car.

“Then McGowan and Crane went to Evergreen to purchase more cocaine from ‘Rerun,’ who got into McGowan's vehicle with them. McGowan gave him $150 for crack cocaine, but before Rerun could give them the cocaine, a police officer stopped them. After approximately 15 minutes, the officer let Rerun go. The officer then followed McGowan and Crane to Abby Atterby's house in Evergreen. McGowan left Crane at Atterby's house and returned 30 minutes later. Crane left with McGowan, and they located Rerun. McGowan told him that he needed his money back because he and Crane had to ‘get out of the state right then.’ Rerun gave McGowan $100.

“McGowan and Crane then drove until they reached Slidell, Louisiana, about daybreak. Crane persuaded McGowan to stop at a motel. She went in and had someone at the front desk telephone emergency 911. When the police arrived, she told them that McGowan had been holding her against her will. The police arranged for her to telephone her mother and they let McGowan go.

“After giving several false statements, she led law enforcement officers to the hammer used to kill the Johnsons. At the time she testified against McGowan she had pleaded guilty to two counts of murder for killing the Johnsons as lesser-included offenses of capital murder (for which she had been indicted) in exchange for consecutive life sentences, but she had not yet been sentenced.”

McGowan, 990 So. 3d at 943-45.

This Court outlined the trial testimony from the remaining witnesses for the State as follows:

“The Johnsons’ daughter, Mary Boggan, testified that her mother was 79 years old at the time of her death and that her father was 82 years old at the time of his death. She also testified that her father's wallet and his gold watch were missing when his body was found.

“James Robert Pitts testified that on a late afternoon in July, McGowan came to his residence and asked for a $10 loan; that, when he refused to loan him the money, McGowan asked if he would give him the money in exchange for sex with his female companion; and that when he refused that, McGowan and his companion left.

“Chris Johnson testified that, while he was at Harper's residence on July 18, about 6:00 p.m., McGowan and a heavy set female arrived; that McGowan was wearing blue-jean shorts, but was not wearing a shirt, and he looked ‘rough’; and that, within an hour after he left, he saw McGowan's vehicle heading north toward Evergreen.

“Dora Porter, Frank Porter's wife, testified that McGowan came to their house between 9:00 p.m. and 10:00 p.m. on July 18, 1994, and asked for a hammer, explaining that his muffler had wrapped around the drive shaft of his car, which was down the road; that he was wearing cut off blue-jean shorts and was not wearing shoes or a shirt; and that State's exhibit 26 was the hammer her husband had given McGowan.

“Frank Porter testified that he introduced McGowan to the Johnsons and that he went with McGowan to the Johnsons on seven or eight occasions for McGowan to pawn items; that, when he went to see Mr. Johnson, he would always go to the back door; that, three or four months before the murders, after he and McGowan had been to the Johnsons’ house, McGowan told him that they should rob the Johnsons because Mr. Johnson had ‘too much money on him’; that he told McGowan that he did not want to think about doing something like that because the Johnsons were ‘too good of friends ․ just like family’; and that Mr. Johnson always kept his wallet in his overalls. He also testified to the same facts his wife had testified to in regard to McGowan's July 18 visit except that he further testified that when he went outside to get the hammer for McGowan, he saw a vehicle with someone sitting in the driver's seat. He also identified exhibit 26 as the hammer he had given McGowan.

“Kenneth Claiborne testified that his nickname is ‘Rerun’; that McGowan and Crane stopped him in Evergreen and McGowan gave him $150 to get them some crack cocaine; that, while the three were riding around trying to procure some crack cocaine, Sgt. James Simpson stopped them, told McGowan that his wife wanted the car; and that, about 20 minutes later, he saw McGowan and Crane again and McGowan asked him to give him back $100.

“Sgt. Simpson testified that he stopped McGowan's vehicle because the police were looking for the vehicle because McGowan's wife had filed a complaint charging ‘unauthorized use of the vehicle’ and that he detained them until Officer Wayne Stewart arrived.

“Officer Wayne Stewart testified that, at 12:55 a.m., he assisted Sgt. Simpson with the vehicle stop; that, when he asked McGowan if he had been home with the vehicle yet, McGowan said that he had not; that he followed McGowan in his patrol car to a residence that McGowan claimed to be his; that, after McGowan let his female passenger out of the vehicle, he followed McGowan to the gas station where McGowan's wife worked; that, there, he overheard McGowan tell his wife that he had been with his cousin all day; and that McGowan's wife (Lois Harper) seemed satisfied, so the officer left.

“Carolyn Fraser, Lois's sister, testified that her sister and McGowan had lived together for approximately one year; that, while she was babysitting Lois's children at Lois's house in the early morning hours of July 18, McGowan dropped off Crane, about 1:00 a.m.; and that he returned about 30 minutes later and, a short time later, he and Crane left in Lois's car.

“Lois Harper testified that she and McGowan had lived together for a year; that she owned a blue Toyota Corona automobile; that, when she woke up about 3:00 p.m. on July 18, her car was gone; that, when she next saw McGowan at 1:00 a.m. to 2:00 a.m. that next day at the service station, he was in her vehicle; that, while he was there, one of her roommates called her and told her to tell McGowan to bring the car home because he had left a woman named ‘Dedree’ there, she testified that, when she asked McGowan who ‘Dedree’ was, he told her that she was his half sister, but Lois knew he did not have a half sister; and that, after he left, she did not see him again until he was imprisoned.

“The forensic medical examiner, Dr. James C.U. Downs, testified that the Johnsons were killed on the night of July 18 or in the early morning hours of July 19. The autopsy of Mr. Johnson's body revealed multiple lacerations to his head and fractures of the skull. The autopsy of the body of Mrs. Johnson revealed multiple head injuries and skull fractures. The medical examiner concluded that both victims died of blunt-force trauma to the head; that Mr. Johnson's injuries were consistent with having been inflicted by a hammer or similar instrument having a single, flat, round surface; that one of the injuries to Mrs. Johnson's head was consistent with having been inflicted by State's exhibit 26 or by a hammer having similar physical characteristics; that an injury on her face was very consistent with having been inflicted by the claw end of a hammer; and that, if they were conscious when the injuries were inflicted, the victims would have felt substantial pain. He further testified that he examined the injuries that had resulted in Barry Harper's death; that they were similar to those of the Johnsons; and that they too were multiple blunt-force injuries to the head that were consistent with injuries caused by a hammer.

“Dr. Downs explained that a piece of Mrs. Johnson's skull (bone tissue) had a distinguishing indentation, which he analogized to a footprint; that, when he received the hammer, he made impressions of its head in molding clay; and that he compared those impressions with the indentation in the piece of bone in Mrs. Johnson's skull. After he showed the jury how he had compared the impressions with the bone, he fit the hammer into the piece of bone to show that the hammer fit into the impressions in Mrs. Johnson's skull.

“William H. Jones, a forensic serologist, testified that he studied the blood splatters present at the scene, including those on the ceiling in the room where Mr. Johnson was killed; that the blood impact of Mr. Johnson occurred at a height of approximately two to three feet; that the blood impact of Mrs. Johnson was the area very close to the bed or just above the surface of the bed; that he found the presence of human blood on the upper handle of State's exhibit 26, but the quantity was insufficient to perform other tests (such as DNA) on; that he also found bloodstains at the bedroom door that were not part of the impact splatters, i.e., they were straight-down drops of blood; that the blood in those drops was human blood group A, the same type as Mrs. Johnson's blood; and that his testing of the clothing Crane was wearing that night showed no presence of blood. On cross-examination, Jones testified that he received Crane's clothing nine days after the murders and that the integrity of that clothing and his test results depended on what had been done to that clothing during that nine-day period; that he did not find any hair or tissue on the hammer; and that the presence of blood on the hammer was not just in one spot, but that there was a ‘thinly smeared area of blood.’ He also testified that the genetic DNA of the blood on a piece of ‘blood-soaked’ tissue paper found near the hammer did not match McGowan or Mr. or Mrs. Johnson.

“Larry Ikner, an investigator for the district attorney's office, testified that the Johnsons’ home was located off U.S. Highway 84, in the ‘Travis Bridge area’; that, on July 21, officers, aided by Crane, searched along County Road 47 near the Johnsons’ house and found a hammer, State's exhibit 26, approximately one-tenth of a mile south of the house. On cross-examination, Ikner testified that between $10,000 and $11,000 in locked cabinets and around 20 guns were recovered from the Johnsons’ house.

“Ronnie Harper, Lois Harper's brother, testified that he introduced McGowan to Barry Harper, his cousin, about four to five months before Harper's murder and that on that occasion McGowan had borrowed $175 from Barry Harper; that McGowan told him that ‘he was going to go knock [Barry Harper] out’; that one to two weeks before the murders, McGowan asked him if he had ever killed anyone; he told McGowan he had not, then McGowan stated that ‘he knew where there was a elderly couple lived near Travis Bridge that him and [Ronnie Harper] could kill and get away with it,’ and that he told him no; and that he was at his sister Lois's house when McGowan and Crane came to the house about 1:00 a.m. on July 19.”

McGowan, 990 So. 3d at 945-47.

This Court then summarized the defense testimony at trial as follows:

“Mildred Crane, Dedree Crane's mother, testified that McGowan picked Dedree up for lunch on July 18; that Dedree telephoned her the following day from Louisiana and asked her to come get her; that, on July 27, Alabama Bureau of Investigation (‘ABI’) Agent Simon Benson came to her house and asked for the clothes Dedree was wearing while she was with McGowan; and that nothing had been done to the clothes since Dedree had worn them.

“Simon Benson, an ABI agent, testified that when Crane's mother gave him the clothes that Crane had been wearing, they ‘had a[n] odor as being dirty.’ ”

McGowan, 990 So. 3d at 947.

On February 18, 2009, McGowan timely filed a Rule 32 petition. His request to proceed in forma pauperis was granted on May 12, 2009. On December 17, 2015, McGowan filed an amended Rule 32 petition. (C. 946-1114.) On February 16, 2016, the State filed its “Answer and Motion to Dismiss” McGowan's amended Rule 32 petition,⁴ arguing that McGowan's claims were either precluded, insufficiently pleaded, or without merit. On September 12, 2017, the circuit court issued an order summarily dismissing all of McGowan's non-Atkins claims on the grounds that they were precluded, insufficiently pleaded, and without merit. The circuit court, however, ruled that McGowan was “entitled to an evidentiary hearing on the Atkins claim as to whether he is mentally retarded, and whether or not the claim would bar execution.” (C. 1385.) The circuit court also granted both parties discovery on this issue. In December 2022, the circuit court held a two-day evidentiary hearing on McGowan's Atkins claim. Ultimately, the circuit court denied McGowan's Atkins claim. This appeal follows.

Standard of Review

Recently, in Belcher v. State, [Ms. CR-2023-0206, June 26, 2026] ___ So. 3d ___ (Ala. Crim. App. 2025), this Court set forth the following standard that we use to review a judgment ruling on a postconviction petition:

“It is well settled that a circuit court may summarily dismiss a postconviction petition pursuant to Rule 32.7(d), Ala. R. Crim. P.,

“ ‘[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings ․’

“See also Hannon v. State, 861 So. 2d 426, 427 (Ala. Crim. App. 2003); Cogman v. State, 852 So. 2d 191, 193 (Ala. Crim. App. 2002); Tatum v. State, 607 So. 2d 383, 384 (Ala. Crim. App. 1992).

“ ‘ “[W]here there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, ‘[t]he standard of review on appeal ․ is whether the trial judge abused his discretion when he denied the petition.’ ” Boyd v. State, 913 So. 2d 1113, 1122 (Ala. Crim. App. 2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala. Crim. App. 1992)). However, “when the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So. 2d 1097, 1098 (Ala. 2001). “The sufficiency of pleadings in a Rule 32 petition is a question of law” and is reviewed “ ‘de novo.’ ” Ex parte Beckworth, 190 So. 3d 571, 573 (Ala. 2013) (quoting Ex parte Lamb, 113 So. 3d 686, 689 (Ala. 2011)). Moreover, when a trial court makes its judgment “based on the cold trial record,” we apply a de novo standard of review. Ex parte Hinton, 172 So. 3d 348, 352 (Ala. 2012).’

“Harris v. State, 365 So. 3d 1075, 1089 (Ala. Crim. App. 2021).

“[Most] of [McGowan's] claims were summarily dismissed on the ground that they were insufficiently pleaded.

“ ‘Rule 32.3, Ala. R. Crim. P., states that “[t]he petitioner shall have the burden of pleading ․ the facts necessary to entitle the petitioner to relief.” Rule 32.6(b), Ala. R. Crim. P., states that “[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings.” As this Court noted in Boyd v. State, 913 So. 2d 1113 (Ala. Crim. App. 2003):

“ ‘ “ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.” Boyd v. State, 746 So. 2d 364, 406 (Ala. Crim. App. 1999). In other words, it is not the pleading of a conclusion “which, if true, entitle[s] the petitioner to relief.” Lancaster v. State, 638 So. 2d 1370, 1373 (Ala. Crim. App. 1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to present evidence proving those alleged facts.”

“ ‘913 So. 2d at 1125.

“ ‘ “The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So. 2d 724 (Ala. Crim. App. 2003).”

“ ‘Hyde v. State, 950 So. 2d 344, 356 (Ala. Crim. App. 2006).

“ ‘ “Although postconviction proceedings are civil in nature, they are governed by the Alabama Rules of Criminal Procedure. See Rule 32.4, Ala. R. Crim. P. The ‘notice pleading’ requirements relative to civil cases do not apply to Rule 32 proceedings. ‘Unlike the general requirements related to civil cases, the pleading requirements for postconviction petitions are more stringent․’ Daniel v. State, 86 So. 3d 405, 410-11 (Ala. Crim. App. 2011). Rule 32.6(b), Ala. R. Crim. P., requires that full facts be pleaded in the petition if the petition is to survive summary dismissal. See Daniel, supra. Thus, to satisfy the requirements for pleading as they relate to postconviction petitions, [the petitioner] was required to plead full facts to support each individual claim.”

“ ‘Washington v. State, 95 So. 3d 26, 59 (Ala. Crim. App. 2012). “The pleading requirements of Rule 32 apply equally to capital cases in which the death penalty has been imposed.” Taylor v. State, 157 So. 3d 131, 140 (Ala. Crim. App. 2010).’

“Harris, 365 So. 3d at 1089-90.”

Belcher, ___ So. 3d at ___. In addition, “[s]ummary disposition is also appropriate when the petition is obviously without merit or where the record directly refutes a Rule 32 petitioner's claim.” Lanier v. State, 296 So. 3d 341, 343 (Ala. Crim. App. 2019).

Some of McGowan's claims were summarily dismissed because they were precluded under Rule 32.2, Ala. R. Crim. P. “ ‘ [ T]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.’ ” Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995).

“Finally, ‘ “[w]ith certain exceptions not applicable here, ‘this Court may affirm the judgment of the circuit court for any reason, even if it is not for the reason stated by the circuit court.” ’ Harris, 365 So. 3d at 1091 (quoting Acra v. State, 105 So. 3d 460, 464 (Ala. Crim. App. 2012)).”

Belcher, ___ So. 3d at ___.

Analysis

McGowan makes two general arguments on appeal. First, McGowan contends that the circuit court erred by summarily dismissing the non-Atkins claims in his petition without an evidentiary hearing. Second, McGowan argues that the circuit court erred by denying his Atkins claim after an evidentiary hearing. Neither argument entitles McGowan to relief.

I. Summary Dismissal of McGowan's Non-Atkins Claims

McGowan contends that the circuit court erred by summarily dismissing his non-Atkins claims. First, McGowan contends that the circuit court erroneously dismissed “most of Mr. McGowan's non-Atkins claims” as being procedurally barred, without merit, or insufficiently pleaded. (McGowan's brief, p. 16 (citing C. 1381).) Second, McGowan contends that the circuit court erroneously dismissed his ineffective-assistance-of-counsel claims as being insufficiently pleaded or meritless.

A.

The circuit court summarily dismissed all of McGowan's claims that were not Atkins claims or ineffective-assistance-of-counsel claims because they were “raised at trial, and/or on appeal, or could have been raised at trial, and/or on appeal ․ and/or are without merit.” (C. 1381-82.) In its “Answer and Motion to Dismiss,” the State pleaded those grounds of preclusion under Rule 32.2(a) as to each of McGowan's non-Atkins, non-ineffective-assistance-of-counsel claims. Under Rule 32.3, “once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence.” A review of the record on appeal shows that McGowan did not explain by a preponderance of the evidence in his “Opposition to the State's Motion to Dismiss” how the grounds of preclusion did not apply. Thus, the circuit court properly summarily dismissed his non-Atkins, non-ineffective-assistance-of-counsel claims.

In addition, McGowan has waived his contentions of error that those claims were erroneously found to be precluded under Rule 32.2(a) because his argument is the following bare contention: “The failure to so much as specify which of the multiple and mutually exclusive grounds for dismissal the circuit court was invoking to dismiss most of Mr. McGowan's 296-paragraph amended petition alone requires vacatur.” (McGowan's brief, p. 16.) McGowan fails to specify which claims he believes were not precluded, much less explain why he believes the grounds of preclusion should not apply to those claims. Accordingly, his bare contention that the grounds of preclusion were improperly applied is waived because McGowan has failed to satisfy the requirements of Rule 28(a)(10), Ala. R. App. P., which requires that an appellate brief contain “the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.”

McGowan also notes that, in addition to finding that the nonAtkins, non-ineffective-assistance-of-counsel claims were precluded, the circuit court found that some of those claims were without merit. McGowan acknowledges that a court may summarily dismiss a claim on its merits if it is “ ‘obviously without merit.’ ” (McGowan's brief, p. 17 (quoting Jackson v. State, 133 So. 3d 420, 458 (Ala. Crim. App. 2009) (emphasis added).) But, he then contends: “That is not the case here.” (McGowan's brief, p. 17.) This bare contention is also waived under Rule 28(a)(10) because McGowan does not state what specific claims were improperly dismissed as being obviously without merit, much less provide argument and analysis to show that the claims had merit.

Finally, McGowan states: “[I]f the circuit court's order is based on a finding that [he] failed to meet some (unstated) burden of proof, imposing any such burden at the pleading stage of a Rule 32 proceeding is legally erroneous.” (McGowan's brief, p. 17 (emphasis added).) This contention is entirely speculative, and, again, McGowan fails to identify in this section of his brief any particular claim that was summarily dismissed based on insufficient pleading, much less provide any argument that such a claim was specifically pleaded. Moreover, the circuit court's summary-dismissal order was clear that it was dismissing McGowan's non-Atkins, non-ineffective-assistance-of-counsel claims because they were precluded under Rule 32.2(a) and because they were without merit, not because they were insufficiently pleaded. (C. 1380-1382.) To the extent McGowan contends here that his various ineffective-assistance-of-counsel claims were dismissed based on his failure to sufficiently prove them, rather than sufficiently plead them, we address each of those claims individually herein and reject this argument. Contrary to McGowan's contention, both the circuit court and this Court have applied the Rule 32 pleading requirements and have not rejected his non-Atkins claims based on a failure of proof.

B.

McGowan next contends that his ineffective-assistance-of-counsel claims were erroneously summarily dismissed as “insufficiently pleaded” because he “pleaded facts that, if true, show that he was denied effective assistance of counsel throughout his capital murder trial.” (McGowan's brief, p. 18.)

In addressing McGowan's specific contentions regarding the summary dismissal of his multiple ineffective-assistance-of-counsel claims without an evidentiary hearing, we apply the following well-settled legal principles:

“ ‘ “To prevail on a claim of ineffective assistance of counsel, the petitioner must show (1) that counsel's performance was deficient and (2) that the petitioner was prejudiced by the deficient performance. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

“ ‘ “ ‘Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.’

“ ‘ “Strickland, 466 U.S. at 689.

“ ‘ “ ‘[T]he purpose of ineffectiveness review is not to grade counsel's performance. See Strickland [v. Washington], [466 U.S. 668,] 104 S. Ct. [2052] at 2065 [(1984)]; see also White v. Singletary, 972 F.2d 1218, 1221 (11th Cir. 1992) (“We are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.”). We recognize that “[r]epresentation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Strickland, [466 U.S. at 693,] 104 S. Ct. at 2067. Different lawyers have different gifts; this fact, as well as differing circumstances from case to case, means the range of what might be a reasonable approach at trial must be broad. To state the obvious: the trial lawyers, in every case, could have done something more or something different. So, omissions are inevitable. ․’

“ ‘ “Chandler v. United States, 218 F.3d 1305, 1313-14 (11th Cir. 2000) (footnotes omitted).

“ ‘ “An appellant is not entitled to ‘perfect representation.’ Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). ‘[I]n considering claims of ineffective assistance of counsel, “we address not what is prudent or appropriate, but only what is constitutionally compelled.” ’ Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987).”

“ ‘Yeomans v. State, 195 So. 3d 1018, 1025-26 (Ala. Crim. App. 2013). ․

“ ‘We also recognize that when reviewing claims of ineffective assistance of counsel “the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.” Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).’ ”

Belcher, ___ So. 3d at ___ (quoting Marshall v. State, 182 So. 3d 573, 582-83 (Ala. Crim. App. 2014)).

“In determining whether a petitioner was prejudiced by any deficient performance,

“ ‘ “ ‘a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ․ In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.” ’ ”

Belcher, ___ So. 3d at ___ (quoting Gaddy v. State, 952 So. 2d 1149, 1171 (Ala. Crim. App. 2006), quoting in turn Wiggins v. Smith, 539 U.S. 510, 534 (2003), quoting in turn Strickland v. Washington, 466 U.S. 668, 694 (1984)).

1.

McGowan first argues that his original trial counsel provided ineffective assistance because he did not disclose his “conflict of interest,” having previously represented McGowan's accomplice, Crane, in unrelated matters, and because he did not withdraw from representation until approximately “seven months prior to trial.” (McGowan's brief, p. 19.) McGowan also contends that his original trial counsel did not discuss his case with the replacement counsel until nearly “two months before the start of trial.” (McGowan's brief, p. 19.) McGowan then argues on appeal that the circuit court erred by dismissing this claim that he says was sufficiently pleaded and that the court should have specifically addressed the conflict of interest and “allowed [him] to develop evidence supporting this claim.” (McGowan's brief, p. 20.)

First, on appeal, McGowan does not address the fact that this claim was properly summarily dismissed as being precluded under Rule 32.2(a)(3) and (5) because it could have been raised at trial and on appeal. McGowan's trial counsel “were appointed on November 15, 1995, after previous counsel withdrew because of a conflict of interest.” McGowan, 990 So. 2d at 962. “They received the case file on December 19, 1995,” and McGowan's trial began on April 22, 1996. Id. Thus, trial counsel had five months from appointment to consider whether McGowan had been prejudiced in any way by previous counsel's representation and four months from receipt of the case file to raise this claim before the trial court. Likewise, appellate counsel could have raised the claim on appeal. Thus, “[w]e agree with the circuit court that [McGowan's] claims of ineffective assistance of pretrial counsel were precluded by Rules 32.2(a)(3) and (a)(5), because they could have been, but were not, raised and addressed at trial and on appeal.” Moody v. State, 95 So. 3d 827, 837-38 (Ala. Crim. App. 2011). See also Ex parte Harris, 947 So. 2d 1139, 1149 (Ala. 2005) (holding that Harris's claim that counsel were ineffective for “fail[ure] to maintain continuity of representation” was procedurally barred “because it could have been, but was not, raised at trial,” noting that “trial counsel had at least nine months in which to consider whether the fact that Harris had been represented by so many different pretrial attorneys amounted to ineffective assistance”); Wilkerson v. State, 70 So. 3d 442, 452 (Ala. Crim. App. 2011) (holding that claim pretrial counsel was ineffective was precluded under Rule 32.2(a)(3) and (5) because there was ample time for trial and appellate counsel to raise the claim); and Rule 32.2(d) (“Any claim that counsel was ineffective must be raised as soon as practicable, either at trial, on direct appeal, or in the first Rule 32 petition, whichever is applicable.”).

This claim was also properly summarily dismissed as being insufficiently pleaded. Although McGowan did not have to prove this claim in his petition, McGowan was required to fully plead the facts that, if true, entitled him to relief. McGowan's initial trial counsel withdrew once the conflict was discovered, and his ultimate trial counsel had five months to prepare, and McGowan never met his burden of pleading facts to show that the pretrial counsel's representation resulted in deficient performance of his trial counsel, much less that he was prejudiced thereby. McGowan pointed to actions pretrial counsel took or failed to take, but he did not plead any facts to show that the actions were tied to the conflict, much less how taking or failing to take various actions prejudiced him, particularly given that pretrial counsel withdrew well before trial and trial counsel had five months to prepare for McGowan's trial. Furthermore, McGowan does not even allege that appellate counsel was ineffective for failing to raise this issue on appeal.

Finally, to the extent McGowan argues that the circuit court should have addressed this claim individually and specifically in its order, the circuit court was not required to specifically address the alleged conflict of interest or any other claim that was summarily dismissed because “ ‘Rule 32.7 does not require the trial court to make specific findings of fact upon a summary dismissal.’ ” Batts v. State, 342 So. 3d 597, 599 (Ala. Crim. App. 2020 (quoting Fincher v. State, 724 So. 2d 87, 89 (Ala. Crim. App. 1998)). Moreover, McGowan did not raise this specific contention below in his “Motion to Reconsider” the dismissal and denial of his postconviction claims. (C. 1669-70 (arguing that he should have been allowed an evidentiary hearing, not that the court should have issued fact findings on this claim.) Accordingly, McGowan's specific contention that the circuit court should have issued fact findings on this claim is not preserved for appellate review. See Robinson v. State, 869 So. 2d 1191, 1193 (Ala. Crim. App. 2003) (holding that the appellant's claim that the circuit court erred in failing to make specific findings of fact as to all claims in the appellant's Rule 32 petition was not preserved for review because the appellant did not first present the claim to the circuit court).

2.

McGowan next restates the claim in his petition that “replacement trial counsel were statutorily unqualified to serve in a capital case.” (McGowan's brief, p. 20.) Specifically, McGowan argues that trial counsel were ineffective because they failed to meet the requirements of § 13A-5-54, Ala. Code 1975, which provides that appointed counsel for one charged with a capital offense have “no less than five years’ prior experience in the active practice of criminal law.” McGowan also contends that “[t]he circuit court erred by not addressing counsel's qualifications at all in dismissing [his] claim.” (McGowan's brief, p. 21 (emphasis in original).) This bare contention, which is not supported by argument or legal authority explaining how the circuit court erred by summarily dismissing this claim, waives review on appeal under Rule 28(a)(10). McGowan even concedes on appeal that the failure of counsel to meet the “technical requirements” of § 13A-5-54 is not “per se ineffective,” but he appears to raise this claim because, in his words, “it contextualizes and bolsters a showing of deficiency and prejudice under Strickland.” (McGowan's brief, p. 21.) This assertion is clearly insufficient to support an independent claim of ineffective assistance of counsel. Furthermore, McGowan also fails to acknowledge that no fact finding is required when a claim is summarily dismissed. See Moody, supra.

This claim was also precluded from review under Rule 32.2(a)(2) and (4) because it was raised and rejected both at trial and on appeal. As this Court noted in McGowan's direct appeal, McGowan's trial counsel questioned the trial court regarding whether they satisfied the aforementioned statutory requirements, and appellate counsel raised the same question on direct appeal. “The trial court expressly found that [trial counsel] were ‘very well qualified.’ ” McGowan, 990 So. 2d at 992 (quoting CR. 287; see also TR. 451). At the hearing on the matter, the trial court found:

“ ‘I have two experienced and able litigators trying the case. And you have not shown any lack of diligence nor have you shown any lack of ability in this case. In fact, you have shown a great deal of ability and you have done everything I would have expected a lawyer to do in the case and ․ some I wouldn't have thought of ․.’ ”

Id. (quoting R. 452-53). At the conclusion of the hearing on this motion, the trial court reiterated that, “based on [his] personal experience with both of the lawyers[,] I consider them among the finest lawyers practicing in southeast Alabama.” (TR. 457.)

On direct appeal, this Court held that, even if the technical requirements of § 13A-5-54 were not satisfied, “the obvious objective and intent of the statute -- effective counsel for an indigent capital litigant -was fulfilled.” Id. at 994. Furthermore, this Court emphatically stated: “We have diligently searched the record and we agree with the trial court that McGowan's attorneys were ‘very able and competent.’ ” McGowan, 990 So. 2d at 995. This Court further stated that, even if its interpretation of the statute was inconsistent with the Legislature's intent, any error would be harmless.

In sum, “once a ground of preclusion has been pleaded, the petitioner shall have the burden of disproving its existence by a preponderance of the evidence,” Rule 32.3 and McGowan failed to disprove that this claim was precluded.

3.

McGowan also contends that the circuit court erroneously summarily dismissed his claim that trial counsel were ineffective for failing to “investigate the amount of crack cocaine he consumed on the day of the murders; the extent of his prior use of crack cocaine; and the medical research available at the time documenting the dramatic effects of crack-cocaine addiction.” (McGowan's brief, p. 21.) The circuit court dismissed this claim as being both insufficiently pleaded and without merit because it was refuted by the record. We agree that this claim was insufficiently pleaded and without merit.

On direct appeal, this Court discussed the evidence that McGowan presented from Dr. Robert deFrancisco indicating that, in addition to his having an IQ score of 76, McGowan had ingested “a large amount of crack cocaine, which lowers a person's inhibitions.” McGowan, 990 So. 2d at 948. Dr. deFrancisco further testified “that the offenses were committed while McGowan was under the influence of extreme mental or emotional disturbance because the offenses were ‘done with the strong influence of crack cocaine’ and that a person who had had 30 ‘hits’ of crack cocaine in a 6- or 7-hour period would have problems controlling himself” and even that “it was ‘certainly possible’ that McGowan was actually an accomplice in the capital offense.” Id. at 948. Although McGowan faults trial counsel for not discovering more evidence of the extent of his crack-cocaine usage, postconviction counsel failed to assert any specific evidence of the amount of his crack-cocaine usage or to identify who could have testified to it. Instead, McGowan merely cites the trial record and the opinion on direct appeal regarding the amount consumed and speculates that McGowan “smoked even more crack” than what was testified to at trial. (C. 974.) McGowan also stated in his petition that, “[u]pon information and belief, Dr. [Randall] Tackett [an expert who could have testified on the effects of crack-cocaine] would have been available to testify at Mr. McGowan's trial in 1996.” (C. 970.) This Court has explained that “alleging ‘upon information and belief’ ․ is nothing more than a speculative assertion.” Brooks v. State, 340 So. 3d 410, 474 (Ala. Crim. App. 2020). See also Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013) (“Speculation is not sufficient to satisfy a Rule 32 petitioner's burden of pleading.”). Moreover, McGowan pleaded that consultation with Dr. Tackett had “revealed the possible effects of Mr. McGowan's crack binge on his ability to form the requisite criminal intent” and that “Dr. Tackett would have testified that anyone, including Mr. McGowan, who ingested such a large volume of crack over the course of one day would have been severely impaired and therefore unable to appreciate the nature of their actions.” (C. 969 (emphasis added).) This allegation was, thus, generalized and speculative, and “[i]f the court cannot determine whether the petitioner is entitled to relief after considering all of the factual assertions to be true, then the petitioner has failed to meet his burden of pleading pursuant to Rule 32.6(b), Ala. R. Crim. P.” Lee v. State, 44 So. 3d 1145, 1156 (Ala. Crim. App. 2009).

Moreover, although McGowan attempted to cure his pleading deficiency in his “Opposition to the State's Motion to Dismiss,” the additional proffered expert testimony would have been cumulative. (C. 1286 (“Dr. Tackett would have testified that: (1) cocaine leads to increased aggression, mood swings, irrational thoughts, and paranoia; (2) anyone who ingested as much crack cocaine over the course of one day ․ would have been severely impaired and unable to appreciate the nature of their actions; and (3) Mr. McGowan's use of crack cocaine would have exacerbated his preexisting intellectual deficiencies.”).) McGowan's trial counsel did present Dr. deFrancisco's testimony to the jury regarding McGowan's use of crack cocaine and how it could have adversely affected him and exacerbated his low-IQ problems. Thus, counsel could not have rendered ineffective assistance by failing to present additional, cumulative testimony regarding McGowan's use of crack cocaine on the night of the murders. See, e.g., McWhorter v. State, 142 So. 3d 1195, 1237 (Ala. Crim. App. 2011) (noting that “additional evidence ․ would have been cumulative to evidence presented by trial counsel”). It is also well settled that “ ‘ “[d]efense counsel is entitled to rely on the evaluations conducted by qualified ․ experts, even if, in retrospect, those evaluations may not have been as complete as others may desire.” ’ ” White v. State, 343 So. 3d 1150, 1176 (Ala. Crim. App. 2019) (quoting McMillan v. State, 258 So. 3d 1154, 1177 (Ala. Crim. App. 2017), quoting in turn Darling v. State, 966 So. 2d 366, 377 (Fla. 2007)). In short, “the inadequate assistance of counsel ․ does not consist of the hiring of an expert who, though qualified, was not qualified enough.” Hinton v. Alabama, 571 U.S. 263, 274-75 (2014) (emphasis added). “The selection of an expert witness is a paradigmatic example of the type of ‘strategic choic[e]’ that, when made ‘after thorough investigation of [the] law and facts,’ is ‘virtually unchallengeable.’ ” Id. at 275 (quoting Strickland, 466 U.S. at 690).

Even if another expert, such as Dr. Tackett, had testified on McGowan's behalf at his trial and had testified “more” about the effects of the crack cocaine, including that it would have rendered him “unable to appreciate the nature” of his actions, McGowan pleaded no facts to show how counsel's reliance on Dr. deFrancisco's assessments rendered counsel's performance deficient. This is especially true considering that this Court previously found that McGowan committed the murders “[i]n a calculated and premeditated manner,” which is completely contrary to a finding that McGowan's degree of intoxication amounted to insanity. McGowan, 990 So. 2d at 1007. See Williams v. State, 795 So. 2d 753, 779-80 (Ala. Crim. App. 1999) (explaining that “ ‘ “[t]he degree of intoxication required to establish that a defendant was incapable of forming an intent to kill is a degree so extreme as to render it impossible for the defendant to form the intent to kill” ’ ” (citations omitted)). “We are confident that [the additional evidence] would have had no impact on the [guilt or] penalty phase proceedings.” Lee v. State, 44 So. 3d 1145, 1161 (Ala. Crim. App. 2009) (affirming the summary dismissal of Lee's postconviction petition (citing Wiggins v. Smith, 539 U.S. 510 (2003))).

Finally, we note that McGowan's reliance on Wiggins v. Smith, 539 U.S. 510 (2003), to support this claim is misplaced. In Wiggins, trial counsel “failed to discover and present” “powerful” mitigation evidence even though that evidence (including the defendant's having suffered sexual abuse as a child) was indicated by the presentence-investigation report and social-services records. Id. at 534-35. By contrast, McGowan's counsel discovered and presented evidence that he had ingested large amounts of crack cocaine, employed and consulted with a forensic psychologist and examiner, and presented expert testimony regarding the adverse effects of that crack cocaine use on his impulse control, particularly in conjunction with his low IQ, about which Dr. deFrancisco also testified. Counsel's “investigation ․ was unreasonable” in Wiggins. Here, McGowan simply wishes the reasonable investigation had resulted in counsel's contacting a different expert whom he contends would have testified that the effects of his crack-cocaine usage on the night of the murders went beyond causing an “extreme mental or emotional disturbance,” McGowan, 990 So. 2d at 948, and prevented him from “appreciating the nature” of his actions. Stated differently, unlike in Wiggins, McGowan, with the benefit of many years’ hindsight, wishes that counsel had done even “more” than what counsel reasonably did, which does not support an ineffective-assistance claim.

As this Court stated in Stanley v. State, 335 So. 3d 1, 61 (Ala. Crim. App. 2020):

“Here, the jury and the trial court were aware of most aspects of the mitigating evidence Stanley alleged in his petition should have been presented. ‘ “[T]he notion that the result could have been different if only [counsel] had put on more than the ․ witnesses he did, or called expert witnesses to bolster his case, is fanciful.” ’ Stallworth v. State, 171 So. 3d 53, 80 (Ala. Crim. App. 2013) (quoting Wong v. Belmontes, 558 U.S. 15, 28, 130 S. Ct. 383, 175 L. Ed. 2d 328 (2009)). Moreover, the additional evidence Stanley identified in his petition that was not presented at his trial was not so strong as to create a reasonable probability that the outcome of the trial would have been different had the evidence been presented. We have reweighed the evidence in aggravation against the totality of the evidence in mitigation, both that presented at trial and that pleaded in Stanley's petition, and we have no trouble concluding that the additional mitigating evidence would not have altered the balance of aggravating circumstances and mitigating circumstances in this case.”

In sum, McGowan pleaded no facts that would overcome the presumption that counsel's actions (presenting at trial an expert's opinion on his low IQ and heavy crack-cocaine use and how they lowered his culpability at trial) were reasonable, much less how hiring a different expert would have changed the outcome of the trial or his sentence. McGowan “pleaded no facts to explain how, if the jury had known this additional information, there is a reasonable probability that [he] would not have been convicted or sentenced to death.” Belcher, ___ So. 3d at ___. Indeed, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Ricter, 562 U.S. 86, 112 (2011). Accordingly, we hold that the circuit court did not abuse its discretion by summarily dismissing this claim because it was insufficiently pleaded, as well as refuted by the record and meritless.

4.

McGowan contends that his trial counsel were ineffective for failing to “adequately” investigate “other facts.” Specifically, McGowan alleges that trial counsel should have retained medical experts to discuss his back injury (and “explored ‘whether or not [he] was in sufficient condition to physically overpower’ his alleged victims” and used that in cross-examining Crane), “an independent blood splatter expert” to “counter ․ the brutality of the crime,” and a DNA expert who “could have shed light on whether Ms. Crane's blood was present at the scene of the crime” (McGowan's brief, pp. 25-26 (quoting C. 1011-16).) This claim is waived because, on appeal, McGowan has merely reasserted the claim he made in his Rule 32 petition without any argument as to why it was sufficiently pleaded and/or without merit and thus how the circuit court erred by summarily dismissing it. See Rule 28(a)(10) and Woodward v. State, 276 So. 3d 713, 746 (Ala. Crim. App. 2018) (holding that Woodward's argument was waived because he “reassert[ed] this claim from his petition, but he made no argument regarding why he believe[d] the circuit court's findings were incorrect”).

We also agree with the State and the circuit court that this claim was insufficiently pleaded. McGowan failed to identify a DNA expert he would have hired to testify, much less how such an expert would have testified and how that would have produced a different result at his trial. In addition, this claim was based on speculation that “if in fact the State's DNA tests revealed that blood samples recovered at or near the scene of the crime did not belong to Mr. McGowan, that fact would obviously ․ suggest that [he] had not committed the crime” and “if the blood samples matched that of another individual ․ it could easily be inferred that that person ․ committed the murders.” (C. 1016 (emphasis added).) Likewise, McGowan asserted in his petition that he had both a wrist and a back injury from his past for which he took medication and that an unnamed surgeon “determined that he would have permanent physical limitations in bending, lifting, and stooping.” McGowan then contended that counsel should have retained an expert and called past doctors as witnesses, but he never provided a single specific name of a person who should have been called to testify. In addition, McGowan alleged that an expert could have investigated “the distinct possibility that [he] may have been physically unable to commit the crimes for which he was convicted.” (C. 1011 (emphasis added).) Likewise, McGowan failed to identify who should have been called as a blood-splatter expert and merely asserted that, “to the casual observer, ․ there was no evidence of the victim's body being moved,” which he says could have also been used to discredit Crane's accomplice testimony that McGowan dragged Mr. Johnson's body across the floor after killing him. (C. 1013.)

In sum, postconviction proceedings are for actual claims, not speculative claims. “Speculation is not sufficient to satisfy a [postconviction] petitioner's burden of pleading.” Mashburn v. State, 148 So. 3d 1094, 1125 (Ala. Crim. App. 2013). And, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Ricter, 562 U.S. 86, 112 (2011). Finally, McGowan failed to remedy any of his insufficient pleading by providing any names of witnesses he thought should have been called in his “Opposition to the State's Motion to Dismiss.” Instead, McGowan complained that it was “nonsensical” to require him to identify witnesses who he believed should have been called. However, contrary to McGowan's contentions, it is well settled that failing to identify witnesses by name “fail[s] to satisfy his burden of pleading full facts under Rule 32.3, Ala. R. Crim. P., and Rule 32.6(b), Ala. R. Crim. P.” Daniel v. State, 86 So. 3d 405, 416 (Ala. Crim. App. 2011). Because McGowan failed to meet his burden of pleading specific facts that, if true, entitled him to relief, this claim was properly summarily dismissed as being insufficiently pleaded.

5.

McGowan then contends that trial counsel was “ineffective at the jury selection stage” for the following reasons: failing to strike venireperson M.G. for cause; failing to strike venirepersons J.B. and H.D. for cause; committing “similar errors with respect to venireperson[s]” W.P., B.J., and W.S.; failing to strike for cause or use a peremptory strike for jurors J.B., S.E., K.V., F.L., B.J., G.B., G.E., M.G.⁵ , T.G., and K.L.; committing “additional errors” of “fail[ing] to inquire whether any venirepersons had knowledge related to the Harper murder” and “fail[ing] to object to prejudicial statements made by various venirepersons, like the statements that Mr. McGowan should be expected to testify [, and] ․ prove his own innocence[,] and that society should not have to pay to take care of murderers.” (McGowan's brief, pp. 26-28.)

This claim is waived because, on appeal, McGowan has merely reasserted the many contentions composing this claim in his petition without any mention of how the circuit court erred by summarily dismissing this claim and without any argument as to why it was sufficiently pleaded and/or meritorious. McGowan further waived this claim by failing to provide sufficient legal argument or analysis. See Rule 28(a)(10) and Woodward, 276 So. 3d at 746 (holding that Woodward's argument was waived because he “reassert[ed] this claim from his petition, but he made no argument regarding why he believe[d] the circuit court's findings were incorrect”).

We also agree with the State and the circuit court that the contentions within this claim are both insufficiently pleaded and without merit.

McGowan's claim is “particularly insufficiently pleaded considering that the standard for showing that counsel was ineffective for failing to challenge a juror for cause or for failing to exercise a peremptory strike is ‘actual bias.’ ” Creque v. State, [Ms. CR-2023-0654, June 26, 2026] ___ So. 3d ___, ___ (Ala. Crim. App. 2026).

“ ‘ “ ‘[W]here a postconviction motion alleges that trial counsel was ineffective for failing to raise or preserve a cause challenge, the defendant must demonstrate that a juror was actually biased.’ Carratelli v. State, 961 So. 2d 312, 324 (Fla. 2007). ‘Because [the appellant's] claim of ineffective assistance of counsel is founded upon a claim that counsel failed to strike a biased juror, [the appellant] must show that the juror was actually biased against him.’ Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001) (citing Hughes v. United States, 258 F.3d 453, 458 (6th Cir. 2001)). ‘[The appellant's] claim of ineffective assistance of counsel is grounded in the claim that counsel failed to strike a biased juror. To maintain a claim that a biased juror prejudiced him, however, [the appellant] must show that the juror was actually biased against him.’ Goeders v. Hundley, 59 F.3d 73, 75 (8th Cir. 1995) (citing Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1981)). [Likewise,] ‘[t]o show attorney error and prejudice in defense counsel's failure to use peremptory strikes for [biased] veniremen, it is necessary for [the appellant] to show that the veniremen did indeed harbor actual bias against [the appellant].’ Parker v. Turpin, 60 F. Supp. 2d 1332, 1362 (N.D. Ga. 1999). ‘Few decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire, where decisions are often made on intangible factors.’ Miller, 269 F.3d at 620.

“ ‘ “ ‘Because a defendant must demonstrate prejudice in a [post-conviction] proceeding, post-conviction relief based on a lawyer's incompetence with regard to the composition of the jury is reserved for a narrow class of cases where prejudice is apparent from the record, where a biased juror actually served on the jury.’

“ ‘ “Jenkins v. State, 824 So. 2d 977, 982 (Fla. App. 2002).” ’ ”

Creque, __ So. 3d at __ (quoting Coan v. State, 322 So. 3d 552, 559 (Ala. Crim. App. 2020), quoting in turn Perkins v. State, 144 So. 3d 457, 472 (Ala. Crim. App. 2012)).

In addition to failing to plead any facts as to what venirepersons trial counsel should have left on the jury, McGowan pleaded no facts in his petition that show that venirepersons M.G., W.P., B.J. were actually biased or that jurors J.B., H.D., S.E., K.V., F.L., B.J., G.B., and G.E. were actually biased, particularly considering that the record shows that all of them stated that they could be fair and consider all the evidence and follow the trial court's instructions. See, e.g., Scott v. State, 262 So. 3d 1239, 1258-59 (Ala. Crim. App. 2010) (holding that the claim that counsel was ineffective for not challenging two prospective jurors for cause was insufficiently pleaded because “Scott did not plead any facts indicating either that the jury seated was partial or identify any juror who would have been removed via a peremptory challenge had he not used that challenge removing the complained-of juror”), reversed on other grounds, Ex parte Scott, 262 So. 3d 1266 (Ala. 2011).

Specifically, venireperson M.G. stated that she could follow the law and the court's instructions and weigh the aggravating and mitigating circumstances before recommending a sentence; venireperson J.B. also stated that he could follow the law and the court's instructions and weigh the aggravating and mitigating circumstances before recommending a sentence; venireperson H.D. indicated the same; venireperson W.P. was an acquaintance of a victim, but had no “close, personal” relationship with anyone involved in the case, and indicated that she would not hold it against McGowan if he did not testify, and stated that she did not remember the news article she had read about the crimes, had not formed any impressions, and that no prior knowledge would affect her ability to follow the law and make a decision based only on what she heard in court; and venireperson B.J. indicated that he would follow the trial court's instructions and consider and weigh all aggravating and mitigating circumstances before recommending a sentence. Likewise, juror J.B. indicated he would follow the court's instructions and consider and weigh all aggravating and mitigating circumstances; juror S.E. was acquainted with a witness in the case, but there was no indication of any actual bias, and when the venire, including S.E., was asked if they expected the defense to prove McGowan's innocence, they responded “negatively” and no one raised a hand to that specific question; juror K.V. indicated that she knew several individuals involved in the case, but clarified that, “you know, but I don't know them,” explaining that she knew them only from them paying their light bills at her place of employment, and although there was some confusion regarding the first time the venire was asked whether McGowan had to prove his innocence, all of them, including juror K.V., responded affirmatively when it was then clarified that it is “not the defendant's duty to prove himself innocent” (TR. 1096-97, 1128-32, 1157-58, 1160); juror F.L. expressly stated that she could weigh the aggravating and mitigating circumstances rather than “always impose the death penalty regardless”; juror B.J. also expressly stated that she would be “willing to weigh” the aggravating and mitigating circumstances rather than “always impose death no matter what”; juror G.B. did not state that he would refuse to consider the aggravating and mitigating circumstances but, rather, indicated that he would weigh all circumstances and not impose death no matter what; juror G.E. raised her hand indicating that she could “follow the law ․ and weigh the aggravating ․ and ․ mitigating circumstances ․ before determining whether to recommend death or life imprisonment without parole” (TR. 816-17); juror M.G. raised her hand indicating that she could also weigh the aggravating and mitigating circumstances before deciding on a sentence recommendation; although juror T.G. initially stated some contrary personal opinions, she later stated that she could follow the law and weigh the aggravating and mitigating circumstances before determining her sentence recommendation (TR. 1083-85; see also McGowan, 990 So. 2d at 983 (holding that “it is reasonable to conclude that she could be a fair and impartial juror”); and juror K.L. indicated that she could follow the law and weigh the aggravating and mitigating circumstances before determining her sentence recommendation (TR. 816-17). See, e.g., Ex parte Killingsworth, 82 So. 3d 761, 764 (Ala. 2010) (holding that “[t]he fact that a prospective juror knows the victim or members of the victim's family does not automatically disqualify the prospective juror for cause”); McGowan, 990 So. 2d at 951 (“A prospective juror should not be disqualified for prejudice or bias if it appears from his or her answers and demeanor that the influence of that prejudice or bias can be eliminated and that, if chosen as a juror, the veniremember would render a verdict according to the law and the evidence.”); and Coan, 322 So. 3d at 560 (Ala. (“The potential juror[s] ․ indicated that [they] believed [they] could be fair and impartial to both sides in this case”; therefore, “a challenge to the juror for cause on the ground that they were biased against [the defendant] would have been meritless.”).

Finally, counsel cannot be ineffective for failing to raise a meritless argument. This Court has consistently held that “ ‘[b]ecause the substantive claim underling the claim of ineffective assistance of counsel has no merit, counsel could not be ineffective for failing to raise [the meritless] issue.’ ” McMillan v. State, 258 So. 3d 1154, 1191 (Ala. Crim. App. 2017) (quoting Lee v. State, 44 So. 3d 1145, 1173 (Ala. Crim. App. 2009)). And there is simply no indication from the record that the laundry list of jurors harbored the type of “ ‘absolute bias or favor’ ” that “ ‘leaves nothing to the discretion of the trial court.’ ” McGowan, 990 So. 2d at 951 (quoting Nettles v. State, 435 So. 2d 146, 149 (Ala. Crim. App. 1983)).

As for the “additional errors” regarding questions the trial counsel could have asked venirepersons and possible objections that could have been made to statements made by venirepersons, these claims were clearly insufficiently pleaded. For example, McGowan alleged that counsel failed to inquire whether venirepersons had knowledge of Barry Harper's murder. However, even in his “Opposition to the State's Motion to Dismiss,” McGowan never alleged what counsel would have learned if it had conducted further inquiry regarding Harper or how he was prejudiced by counsel not objecting to various responses by members of the venire. Accordingly, those contentions were properly summarily dismissed.

In sum, the circuit court properly summarily dismissed McGowan's claim that trial counsel provided ineffective assistance during jury selection as being both insufficiently pleaded and without merit because the underlying contentions were refuted by the record, and McGowan pleaded no additional facts that, if true, entitled him to relief on his claim that venirepersons or jurors should have been removed for cause or by using peremptory strikes.

6.

McGowan also contends that his “trial counsel [were] ineffective in cross-examining ․ Frank Porter and Dedree Crane.” (McGowan's brief, p. 29.) This claim is waived because, on appeal, McGowan has merely reasserted the contentions composing this claim that he made in his petition without any mention of how the circuit court erred by summarily dismissing this claim and without any argument as to why it was sufficiently pleaded and/or meritorious. McGowan additionally waived this claim by failing to provide any legal argument or analysis. See Rule 28(a)(10) and Woodward, 276 So. 3d at 746 (holding that Woodward's argument was waived because he “reassert[ed] this claim from his petition, but he made no argument regarding why he believe[d] the circuit court's findings were incorrect”).

Moreover, this claim is insufficiently pleaded. Trial counsel thoroughly cross-examined Crane at trial, exploring inconsistencies in her statements to the police and her criminal background. And, McGowan failed to plead in his petition or assert in his “Opposition to the State's Motion to Dismiss” how Crane would have responded if challenged on the only specific issue he mentions on appeal, which is that Crane testified that McGowan was wearing a shirt when he killed Harper, which he said contradicted the one witness present at Harper's house before the murder. However, that witness, Christopher Johnson, was simply “not sure” if McGowan was wearing a shirt when he got to Harper's house. Thus, the only specific contention that he would have liked to have been more thoroughly examined appears to be both insufficiently pleaded and refuted by the record. McGowan also never pleaded how Crane would have responded to further cross-examination, much less how counsel's failure to elicit such responses prejudiced him. Similarly, McGowan never pleaded what Porter would have said, much less how he was prejudiced by trial counsel's failure to “explore” Porter being on probation at the time of trial, having just been arrested again (“raising the possibility that he agreed to testify ․ in exchange for leniency”), having a brain surgery before trial, and having been represented previously by McGowan's pretrial counsel.

In sum, McGowan “pleaded no facts to explain how, if [trial counsel had cross-examined Crane and Porter on any of] this ․ information, there is a reasonable probability that [he] would not have been convicted or sentenced to death.” Belcher, ___ So. 3d at ___. As previously stated, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Ricter, 562 U.S. 86, 112 (2011). Thus, this claim was also properly summarily dismissed by the circuit court.

7.

McGowan also contends that trial counsel were “ineffective in failing to object to the district attorney's closing statement to the jury that [McGowan] ‘did thirty hits of cocaine one breezy afternoon, when you go riding around to kill people, I suppose you can be strong as a mule with all that cocaine in you.’ ” (McGowan's brief, p. 30 (quoting C. 1026-27).) McGowan further contends that this statement was improper because he actually consumed “crack cocaine,” not “cocaine,” and because there was no evidence that “ingesting large amounts of crack cocaine makes the user any stronger.” (McGowan's brief, p. 30.) This claim is waived because, on appeal, McGowan has merely reasserted the contentions composing this claim that he made in his petition without any mention of how the circuit court erred by summarily dismissing this claim and without any argument as to why it was sufficiently pleaded and/or meritorious. McGowan also did not provide any legal argument or analysis supporting his conclusion. See Rule 28(a)(10) and Woodward, 276 So. 3d at 746.

Moreover, the circuit court properly summarily dismissed this claim because both contentions that compose this claim are insufficiently pleaded and without merit.

In the State's initial closing argument, the State referred to McGowan's use of “crack” or “crack cocaine” seven times. Thus, the record refutes that the State was in any way confusing the jury by inadvertently referring to the drug as “cocaine” instead of the oft-repeated “crack” or “crack cocaine.” Moreover, McGowan fails to explain how a “slip of the tongue” regarding the precise drug he used would be prejudicial, particularly considering that the drug was otherwise referred to as crack or crack cocaine throughout the entire trial, including the closing arguments. Furthermore, “[c]rack and powder cocaine are two forms of the same drug” even though “smoking crack cocaine produces a shorter, more intense high.” Kimbrough v. United States, 552 U.S. 85, 94 (2007) (citing United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 5, 12 (Feb. 1995)).

Likewise, McGowan's contention that counsel were ineffective for not objecting to the State's statement in its rebuttal closing or argument that McGowan could have been “strong as a mule with all that cocaine” is insufficiently pleaded and without merit. McGowan's trial counsel argued in closing argument that Crane “committed the atrocious and awful acts” and then intimated that McGowan could not have physically committed the murders because he had “acute back problems. Severe back problems. And ․ He had it some four days before all this occurred. I submit that's something else you can think about. Something else you can consider. ․ [T]hink about these medical records and look at them.” (TR. 1952-53.) In its rebuttal closing argument, the State then responded in kind:

“I want to talk about his back problem, cause one minute they say that he was a mechanic and did roof repair ․. He did thirty hits of cocaine one breezy afternoon, when you go riding around to kill people, I suppose you can be strong as a mule with all that cocaine in you.”

(TR. 1970 (emphasis added).) “ ‘It is axiomatic that a prosecutor may legitimately argue facts in evidence and, further, that a prosecutor has a right based on fundamental fairness to reply in kind to the argument of defense counsel.’ ” Harris v. State, 2 So. 3d 880, 920 (Ala. Crim. App. 2007) (quoting DeBruce v. State, 651 So. 2d 599, 609 (Ala. Crim. App. 1993)). In addition, a prosecutor “ ‘ “ ‘ “may argue every legitimate inference” ’ ” ’ ” and “ ‘ “ ‘ “present his impressions from the evidence” ’ ” ’ in closing argument. Id. at 921 (citations omitted).

In the sentencing phase, Dr. deFrancisco testified that, at the time of the murders, McGowan was under the influence of extreme mental or emotional disturbance because the offenses were “ ‘done with the strong influence of crack cocaine’ and that a person who had had 30 ‘hits’ of crack cocaine in a 6- or 7-hour period would have problems controlling himself.” McGowan, 990 So. 2d at 948. Although Dr. deFrancisco had not testified before the prosecutor's guilt-phase closing argument, Dr. deFrancisco's later testimony highlights the guilt-phase evidence -- that McGowan had smoked a considerable amount of crack cocaine that night and that he kept finding ways to get more money to buy more crack cocaine to smoke that night. The prosecutor also made a legitimate inference that someone who is “high” on crack cocaine would be unlikely to feel a back injury and, thus, may appear stronger. “In short, “[b]ecause the comments to which [McGowan] takes exception were legitimate inferences drawn from the evidence presented at trial, and because those comments were made in reply to the inferences [McGowan] had drawn from the evidence, the comments were not improper.” Id. at 922. Accordingly, “ ‘[b]ecause the substantive claim underling the claim of ineffective assistance of counsel has no merit, counsel could not be ineffective for failing to raise this issue.’ ” McMillan v. State, 258 So. 3d 1154, 1191 (Ala. Crim. App. 2017) (quoting Lee v. State, 44 So. 3d 1145, 1173 (Ala. Crim. App. 2009)).

8.

McGowan also contends that the circuit court erred by summarily dismissing as being insufficiently pleaded and without merit his claim that “trial counsel [were] ineffective during the sentencing phase by failing to pursue mitigating factors.” (McGowan's brief, p. 31.) McGowan then lists the following deficiencies:

“Had trial counsel interviewed individuals from Mr. McGowan's upbringing and sought out school records, medical history, employment and training history, and other relevant documents -- or hired a mitigation specialist to conduct such an investigation -- the defense could have instead presented the jury a comprehensive account of [his] tragic and abuse-marked upbringing, intellectual deficiencies, and bouts with substance abuse, among other things.”

(McGowan's brief, p. 32.) In similar fashion, McGowan contends that he was prejudiced by counsel's failures because, he says, “had [counsel] presented a fuller, more compelling case, it is ‘probable that additional jurors would have voted for life imprisonment without parole,’ and the court would have given more weight to the jury's recommendation.” (McGowan's brief, p. 33 (quoting Harris v. State, 947 So. 2d 1079, 1131 (Ala. Crim. App. 2004), overruled on other grounds by Ex parte Jenkins, 372 So. 2d 159 (Ala. 2005)). Initially, we note that McGowan failed to discuss or even name on appeal any witness who should have been called to testify at his trial, who was available to testify at the time of his trial, and what they would have testified.

Moreover, we agree with the circuit court that this claim was both insufficiently pleaded and without merit considering the following well-settled legal principles:

“ ‘[C]ounsel's obligation is to conduct a “substantial investigation into each of the plausible lines of defense.” ’ Jones v. State, 753 So. 2d 1174, 1191 (Ala. 1999) (quoting Strickland, 466 U.S. at 681). ‘ “A substantial investigation is just what the term implies; it does not demand that counsel discover every shred of evidence but that a reasonable inquiry into all plausible defenses be made.” ’ Id. (quoting Strickland, 466 U.S. at 686). Moreover,

“ ‘ “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.” ’

“Id. (quoting Strickland, 466 U.S. at 691).”

Belcher, ____ So. 3d at ___.

“Likewise, a distinction must be made ‘ “ ‘ “between counsel's complete failure to conduct a mitigation investigation, where we are likely to find deficient performance, and counsel's failure to conduct an adequate investigation where the presumption of reasonable performance is more difficult to overcome.” ’ ” ’ Marshall v. State, 182 So. 3d 573, 595 (Ala. Crim. App. 2014) (quoting McWhorter v. State, 142 So. 3d 1195, 1245 (Ala. Crim. App. 2011), quoting in turn Ray v. State, 80 So. 3d 965, 984 (Ala. Crim. App. 2011), quoting in turn Beuke v. Houk, 537 F.3d 618, 643 (6th Cir. 2008)). ‘ “ ‘ “A lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.” ’ ” ’ Id. at 596 (citations omitted). And, counsel's investigation ‘ “ ‘ “must not be evaluated with the benefit of hindsight but accorded a strong presumption of reasonableness.” ’ ” ’ Id. (citations omitted). We also note that ‘ “ ‘ “[c]ounsel is not required to present all mitigation evidence, even if the additional mitigation evidence would not have been incompatible with counsel's strategy. Counsel must be permitted to weed out some arguments to stress others and advocate effectively.” ’ ” ’ McWhorter, 142 So. 3d at 1246 (citations omitted).”

Belcher, ___ So. 3d at ___.

In addition, we have recognized that, in cases that do “ ‘ “ ‘not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation, the presumption of reasonableness imposed by Strickland will be hard to overcome.’ ” ’ ” McWhorter, 142 So. 3d at 1245 (citations omitted; emphasis added). Moreover,

“ ‘ “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.” ’ ”

Id. at 1230-31 (quoting Jones v. State, 753 So. 2d 1174, 1191 (Ala. Crim. App. 1999), quoting in turn Strickland, 466 U.S. at 691).

“Finally,

“ ‘ “[w]hether trial counsel were ineffective for not adequately investigating and presenting mitigating evidence ‘ “turns upon various factors, including the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented.” ’ McMillan v. State, 258 So. 3d 1154, 1168 (Ala. Crim. App. 2017) (quoting Commonwealth v. Simpson, 620 Pa. 60, 100, 66 A.3d 253, 277 (2013)).”

“ ‘Woodward v. State, 276 So. 3d 713, 773-74 (Ala. Crim. App. 2018).’

“State v. Mack, [Ms. CR-2023-0284, Dec. 20, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024). Thus, ‘when evaluating any case of ineffective assistance of counsel related to the penalty phase of a capital-murder trial, we must consider what counsel did, in fact, present in the way of mitigation.’ Mack, ___ So. 3d at ___. ‘ “ ‘Although petitioner's claim is that his trial counsel should have done something more, we first look at what the lawyer did in fact.’ ” ’ Id. at ___ (quoting Ray, 80 So. 3d at 979, quoting in turn Chandler v. United States, 218 F.3d 1305, 1320 (11th Cir. 2000)).”

Belcher, ___ So. 3d at ___.

On direct appeal, this Court summarized the sentencing evidence from McGowan's trial as follows:

“The defense presented the testimony of Dr. Robert deFrancisco, a forensic psychologist and examiner. He testified that McGowan has a full-scale IQ of 76, which, he testified, is ‘a border line range of intelligence’ and a mental age of between approximately 10 and 14; that McGowan is in the ninth percentile in comprehension and reasoning skills; that McGowan's reading level is the beginning of the third grade, which places him in the lower than one percentile. He also testified that McGowan's personality test showed that he did not reflect indicia of an ‘over-controlled hostility’ that would manifest in the commission of very violent crimes; that McGowan is probably not a sociopath; that McGowan has a personality disorder with dependent and antisocial features; that McGowan is very naive, unsophisticated, and impulsive; and that he has poor emotional and intellectual resources (i.e., emotional strength, capacity to understand, intellectual ability, and emotional and cognitive control) and does not think about the consequences of his actions. He further stated that, in his opinion, given McGowan's intelligence level, illiteracy, and emotional makeup, it is unlikely that McGowan could ‘think ahead and ․ scheme and then plan the get-away’; that given his low IQ, his illiteracy, his lack of ‘emotional stamina,’ and his ingestion of a large amount of crack cocaine, which lowers a person's inhibitions, ‘he could be [led] into things quite easily’ and, with the addition of a domineering person of higher intellectual skills, to his deficiencies, it ‘all certainly adds up to severe problems.’ He also explained that McGowan's failure to report the crimes could be explained by a number of reasons other than guilt, such as stupidity, fear, panic, lack of resourcefulness, and poor judgment. Dr. deFrancisco further stated that McGowan's injury to the frontal lobes, which is vital to a person's judgment, personality, resourcefulness, and the ability to weigh consequences, was a significant mitigating circumstance because ‘it would be another reason why [McGowan] has difficulty using judgment in controlling his actions.’ He also stated that the offenses were committed while McGowan was under the influence of extreme mental or emotional disturbance because the offenses were ‘done with the strong influence of crack cocaine’ and that a person who had had 30 ‘hits’ of crack cocaine in a 6- or 7-hour period would have problems controlling himself; that it was ‘certainly possible’ that McGowan was actually an accomplice in the capital offense, i.e., under the substantial domination of another person, assuming that the other person was more intelligent and resourceful than McGowan; that McGowan's capacity to conform his conduct to the law was substantially impaired because of his frontal-lobe injury and his low IQ; and that his mental age is a mitigating circumstance.

“On cross-examination, Dr. deFrancisco testified that McGowan is capable of planning a crime and carrying it out; that having an accomplice would have probably encouraged McGowan's behavior; that he would be able to conceal his actions from other people; that it is unlikely that without help McGowan could have eliminated all the evidence of his having been at the crime scene; and that, even with his limitations, McGowan would have thought to change his bloody clothes and dispose of the murder weapon.

“Grover Hicks, the principal of the middle school McGowan attended, testified that, while most of the eighth graders were about 13 years old, McGowan was 16 or 17 when he was in the eighth grade; that he was poor, ‘retarded somewhat,’ and ‘definitely slower academically’ than most eighth graders; that he could barely read; that he remained in the tenth grade until he dropped out of school at the age of 20 or 21; that, even when he was the oldest child in the school, he associated with middle-school children; that he was a ‘follower’ and would do prohibited things, such as carry cigarettes belonging to other students, to be accepted by the other students; that he did not fight with or bully other students; and that he ‘was a good kid.’

“Melba Mitchell, McGowan's oldest sibling, testified that McGowan is one of five children; that she had to take care of her four siblings because their mother worked in a sewing factory and their father was an alcoholic; that she had quit school when she was 11 years old and married when she was 15; that their father beat the children when he was drunk, which was all the time; that their father beat McGowan from the time McGowan was three years old, even for simple things like getting a slice of bread to eat; that their father beat McGowan sometimes three or four times a week, always with a razor strap; that she remembered when he whipped McGowan with a razor strap until his legs bled when McGowan was six years old; that their father regularly beat the other children, except one; that their mother had men ‘traipsing in and out’ until she ran away with one when McGowan was nine years old; that their mother took their baby sister with her, but abandoned McGowan; that he stayed with their father, but their father left McGowan alone for a month that same year; that, during that month, McGowan had to steal food to eat, his clothes were never washed, and their father would not let the sister take custody of McGowan; that she witnessed a sister, whom McGowan lived with for a while, physically abuse McGowan and because she was afraid of the sister, she left McGowan there; and that, during the time McGowan lived with their stepmother, she starved him and their sister and, when he stole a pickle because he was hungry, the stepmother had McGowan's stepbrothers hold him down while their father whipped him until blood ran down his legs; and that she had never known McGowan to hurt anyone.

“Eugene McGowan, McGowan's second oldest sibling, testified that their father physically and verbally abused McGowan, but if that ‘didn't satisfy him,’ he would beat McGowan or a sister; that he caught their mother on several occasions with other men in their house; that he escaped his home life by joining the military when he was 15 years old; that he came home on furlough once, to find McGowan, who was 8 or 9, had been living alone for three weeks; that he witnessed one of his sisters hit McGowan and call him a ‘sorry son of a bitch’; that their stepmother, whom McGowan lived with, was ‘the filthiest nasty woman [he] had ever seen in [his] life[, e.g.,] she would let chickens and animals in her house to [defecate] on her table’; and that McGowan has never been violent.

“Defense counsel, in closing argument, pointed out that the medical records introduced into evidence show that, on July 15, 1994, McGowan asked a doctor to help him with his addiction to prescription drugs.”

McGowan, 990 So. 3d at 947-49. Moreover, the medical records that were admitted indicated that McGowan had back problems, which trial counsel argued to the jury rendered him physically unable of committing the brutal murders.

In his petition, McGowan alleged that counsel should have hired a mitigation specialist, but he never states who should have been hired. Moreover, it is well settled that “ ‘hiring a mitigation specialist in a capital case is not a requirement of effective assistance of counsel.’ ” Daniel v. State, 86 So. 3d 405, 437 (Ala. Crim. App. 2011) (citation omitted). McGowan also alleged that the various mitigation witnesses who testified at the sentencing phase were not properly prepared and that multiple “family members, ․ friends and acquaintances” could have been called to testify as to his alleged intellectual disability and the abuse he suffered as a child. (C. 1032-35.) He also alleged that he had physical issues, particularly stemming from “breaking his back in several places,” which, he said, raised “serious questions about his ability” to commit the crimes for which he was convicted. (C. 1037-38.) In his “Opposition to the State's Motion to Dismiss,” he argued that, “while some of the evidence presented in the petition is similar to that presented at trial, it is not merely cumulative, but instead demonstrates the depth of the mitigating circumstances in this case.” (C. 1318.)

On appeal, McGowan cites Wiggins v. Smith, 539 U.S. 510, 537 (2003), and State v. Mack, [Ms. CR-2023-0284, Dec. 20, 2024] ___ So. 3d ___ (Ala. Crim. App. 2024), in support of his claim that counsel were ineffective for not presenting mitigation “depth.” But, McGowan's reliance on those decisions is misplaced.

In Wiggins, trial counsel was aware that Wiggins had a disturbing life history, including that he described his life history as “disgusting” and full of “misery,” from three sources -- Department of Social Services records, the presentence-investigation report, and the testing counsel had a psychologist perform. Id. at 523-25. Yet, counsel failed to pursue any additional investigation, and “counsel introduced no evidence of Wiggins’ life history.” Id. at 515 (emphasis added). The “jury heard only one significant mitigating factor -- that Wiggins had no prior convictions.” Id. at 537 (emphasis added). The record also indicated that counsel's conduct was not strategic but “resulted from inattention.” Id. at 526. Moreover, “[t]he mitigating evidence counsel failed to discover and present ․ [wa]s powerful” and included evidence of “severe privation and abuse” and “diminished mental capacities.” Id. at 534-35. The United States Supreme Court concluded that, “[h]ad the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance.” Id. at 537.

In Mack, the only mitigation evidence that was presented at his capital-murder trial was from several law-enforcement officers, who each testified about Mack's “interactions with high-risk juveniles and the positive impact that Mack's actions had had on the juveniles involved.” ___ So. 3d at ___.

“Unlike the evidence that trial counsel presented at Mack's sentencing hearing, at the postconviction hearing Mack's counsel presented the testimony of family friends, and teachers. The testimony ․ painted a bleak picture of Mack's childhood, a childhood marked by extreme poverty, physical abuse, and neglect. The testimony of friends and teachers showed how helpful and kind Mack was to everyone that he encountered.”

Id. at ___. One of Mack's trial counsel “learned about Mack's childhood” from Mack, but counsel never conducted further investigation or presented any evidence of his background. Id. at ___.

“We agree[d] with the circuit court that the mitigating evidence that counsel failed to fully investigate and present was compelling. Many courts have described evidence of childhood abuse or difficult childhoods as ‘highly relevant to the question of moral culpability,’ an issue pivotal at sentencing, especially in this case after Mack admitted that he killed Holman.”

Id. at ___. Accordingly, we further “agree[d] with the circuit court that there was a ‘reasonable probability’ that the mitigating evidence that counsel failed to present might have influenced at least one juror to vote to recommend a sentence of life imprisonment and not death.” Id. at ___.

By contrast, McGowan's jury was presented with ample mitigating evidence. Although McGowan argues on appeal that the jury should have been presented “a comprehensive account of Mr. McGowan's tragic and abuse-marked upbringing, intellectual deficiencies, and bouts with substance abuse,” he ignores the fact that myriad evidence was presented by four defense witnesses covering all three types of mitigation. (TR. 2126-2243.) First, although Dr. deFrancisco was initially hired to perform a court-ordered evaluation, he testified for the defense during the penalty phase that “McGowan has a full-scale IQ of 76, which, he testified is ‘a borderline range of intelligence’ and a mental age of between approximately 10 and 14 ․ [and] that McGowan's reading level is the beginning of the third grade.” McGowan, 990 So. 2d at 947-48. Dr. deFrancisco also testified that “McGowan's capacity to conform his conduct to the law was substantially impaired because of his frontal-lobe injury and his low IQ” and that “his mental age is a mitigating circumstance,” as well as that he was “under the influence of extreme mental or emotional disturbance because ․ [he] had had 30 ‘hits of crack cocaine in a 6- or 7- hour period,” which would have increased his “problems controlling himself.” Id. at 948. McGowan's middle-school principal testified about McGowan being poor, having great academic struggles, that he was only in 10th grade when he “dropped out of school at the age of 20 or 21,” and that even then, “he associated with middle-school children.” Id. Dr. deFrancisco also testified that McGowan's frontal lobe brain injury would be another mitigating circumstance. Even McGowan's back injury was discussed by McGowan's middle-school principal, who testified that McGowan had come to see him in 1994 and told him about his back injury and surgery and showed him the “scars” on his back. Both McGowan's sister, Melba Mitchell, and his brother, Gene McGowan, testified in detail about their abusive childhood, including that “their father beat McGowan from the time [he] was three years old, ․ sometimes three or four times a week, always with a razor strap[,] ․ [and made] his legs ble[e]d when McGowan was six years old,” that McGowan was left home alone “for a month” when he was only eight or nine years old after his mother left with another man and his father found McGowan sitting by himself “in the living room crying, wanting Mama,” and that his stepmother “starved him.” Id. at 949. Mitchell told the jury that, on one occasion, McGowan's stepmother had his stepbrothers “hold him” while her father “whipped him until the blood run down his legs just for taking a pickle.” (TR. 2218.) Mitchell also testified that her sister Mary also abused McGowan, and that, on one occasion, Mary “hit him in the head with a bag of silver dollars.” (TR. 2227.) Gene McGowan testified that their father was so physically abusive that he “lied about [his] age and ․ went in the military” to get out of his family's home. (TR. 2232.) Gene also testified that his brother stayed with his sister Mary for a while and that she regularly slapped him and called him names. Clearly, counsel investigated and presented a wealth of mitigating evidence from a variety of sources. That postconviction counsel over the course of many years developed more “depth” of substantially similar evidence does not show that trial counsel's investigation and presentation was unreasonable, much less that McGowan was prejudiced by the failure to present cumulative evidence about McGowan's intellectual deficiencies and abusive childhood. It is well established that “counsel is not ineffective for failing to present cumulative evidence.” Peraita v. State, 386 So. 3d 799, 835 (Ala. Crim. App. 2021)

In addition, McGowan failed to plead how the additional “depth” would have, to a reasonable probability, resulted in a different outcome, considering that all the information was presented but merely could have been presented by more people and perhaps in more detail. Counsel argued that every statutory mitigating circumstance applied (other than the victims’ participation or consent to the crimes) and argued that the additional catch-all mitigation circumstance of McGowan's terrible childhood applied. Moreover, we note that the jury found the mitigating evidence and counsel's impassioned closing argument “so compelling that they recommended, by a vote of 7 to 5, that [McGowan] be sentenced to life imprisonment without the possibility of parole” instead of death. Hooks v. State, 21 So. 3d 772, 791 (Ala. Crim. App. 2008) (recognizing that “this is not a case where [counsel] did not investigate possible mitigation evidence” and also noting that “ ‘[a]ppellant's contention that his trial counsel rendered ineffective assistance of counsel during the penalty phase of the trial is repudiated by the fact that the jury recommended life in this case’ ” (quoting Buford v. State, 492 So. 2d 355, 359 (Fla. 1986))).

Finally, when considering the prejudice prong of a claim of ineffective assistance during the penalty phase, “ ‘ “the question is whether there is a reasonable probability that, absent the errors, the sentencer -- including an appellate court, to the extent it independently reweighs the evidence -- would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” ’ ” Stanley v. State, 335 So. 3d 1, 55 (Ala. Crim. App. 2020) (citations omitted). “ ‘ “ ‘To assess that probability, we consider the totality of the available mitigation evidence -- both that adduced at trial, and the evidence adduced in the habeas proceeding -- and reweigh it against the evidence in aggravation.’ ” ’ ” Id. at 55-56 (citations omitted). We also “ ‘ “ ‘consider the strength of the evidence in deciding whether the Strickland prejudice prong has been satisfied.’ ” ’ ” Id. at 56 (citations omitted). Furthermore, “ ‘ “ ‘[a] lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance.’ ” ’ ” Marshall v. State, 182 So. 3d 573, 596 (Ala. Crim. App. 2014) (citations omitted).

To be sure, evidence of low intelligence, poverty, and abuse is the type of evidence of mitigating circumstances that may “influence[ ] the jury's appraisal of [a defendant's] moral culpability.” Williams v. Taylor, 529 U.S. 362, 398 (2000). However, this evidence was not only presented at McGowan's trial but was presented through multiple witnesses who each provided a “graphic description” of his childhood. Id. Thus, unlike counsel in Williams, Wiggins, and Mack, McGowan's trial counsel's investigation and presentation of mitigating evidence presented a full picture of McGowan's life. Nothing more was required, particularly given that counsel is not ineffective for failing to present cumulative evidence that is discovered through the benefit of hindsight and decades of investigation and additional development of evidence. As we stated in Creque, ___ So. 3d ___, “counsel is not tasked with locating every witness who could provide an ‘anecdote about a defendant's life.” Rather, “[c]ounsel is constitutionally required to conduct a reasonable investigation and present that which is reasonably discovered through witnesses who are available and willing to testify.” Id. at ___. We hold that the circuit court did not abuse its discretion by finding this claim both insufficiently pleaded and without merit based on the record.

In sum, considering the evidence McGowan contends counsel should have presented in mitigation, what trial counsel, in fact, presented at his trial, the strength of the evidence (“there was no conflicting evidence about who committed the murders,” McGowan, 990 So. 2d at 1006), and reweighing the evidence in mitigation against the evidence in aggravation (“In a calculated and premeditated manner McGowan brutally bludgeoned to death an elderly couple in their home,” McGowan, 990 So. 2d at 1007; the jury deliberated less than 30 minutes before returning guilty verdicts for the capital murder of Hiram Johnson during a robbery and the capital murder of two or more persons -- Hiram and Mamie Johnson -- pursuant to one scheme or course of conduct), we hold that the circuit court properly dismissed this claim because it was both insufficiently pleaded and without merit. There is no reasonable probability that the additional mitigation evidence proffered by McGowan in his petition would have resulted in his receiving a different sentence. The facts pleaded do not indicate that no reasonable lawyer would have failed to discover or failed to procure additional testimony, and, considering the testimony that was presented, “[w]e are confident that [the additional mitigating evidence] would have had no impact on the penalty phase proceedings.” Lee v. State, 44 So. 3d 1145, 1161 (Ala. Crim. App. 2009) (affirming the summary dismissal of Lee's postconviction petition (citing Wiggins v. Smith, 539 U.S. 510 (2003))).

9.

McGowan contends that trial counsel were “ineffective due in part to inadequate time and resources.” (McGowan's brief, p. 33.) This claim is waived because, on appeal, McGowan has merely reasserted the contentions composing this claim without sufficient argument as to why it was not procedurally barred, insufficiently pleaded, and without merit. See Rule 28(a)(10). McGowan additionally waived this claim by failing to provide any legal argument or analysis. Indeed, McGowan cites no case in support of this claim.

Regardless, this claim was properly summarily dismissed as procedurally barred because McGowan challenged the time trial counsel had to prepare for trial in the trial court and on appeal; thus, the claim is precluded by Rule 32.2(a)(2) and (4). McGowan also challenged Alabama's compensation scheme on appeal; thus, that claim was precluded by Rule 32.2(a)(4). McGowan, 990 So. 2d at 962-63, 995, 1001 (holding that the trial court did not abuse its discretion by denying counsel's motion to continue; agreeing with the trial court that trial counsel were “very able and competent”; and recognizing that it is well settled that the statutory limit on compensation under § 15-12-21(d), Ala. Code 1975, did not deprive indigent capital defendants of effective assistance of counsel). Moreover, this Court already found on direct appeal that this claim is without merit. In addition, it was insufficiently pleaded. Even in his “Opposition to the State's Motion to Dismiss,” McGowan never pleaded what counsel would have discovered or presented if given more time and better compensation, much less how the outcome of his trial would have changed.

C.

McGowan contends that the circuit court erred by summarily dismissing his claim that he was incompetent to stand trial and that the trial court erroneously “failed to conduct a hearing on [his] competency.” (McGowan's brief, p. 35.) Specifically, McGowan challenges only the circuit court's holding that this claim is a procedural claim and, thus, is barred under Rule 32.2(a)(3) and (5) because it could have been raised at trial or on appeal. McGowan contends that this claim is not subject to procedural bars and that, if it is, it should still be considered because the failure to raise it at trial or on appeal is the result of ineffective assistance of counsel, but he does not address the “catch-all” ruling in the circuit court's order that his claims were insufficiently pleaded, without merit, and refuted by the record. Although the State's answer asserted only that this claim was precluded under Rule 32.2, the circuit court summarily dismissed this claim for those additional reasons, which McGowan has not addressed on appeal. Thus, McGowan has waived review of this claim because he has not explained how this claim was sufficiently pleaded or contested the finding that it was without merit and refuted by the record. See, e.g., Scheuing v. State, [Ms. CR-2022-0684, Sept. 27, 2024] ___ So. 3d ___, ___ (Ala. Crim. App. 2024) (“[T]his Court has held that similar failures of argument render an appellate brief noncompliant with Rule 28(a)(10), Ala. R. App. P., and constitute a waiver of the underlying postconviction claim.”). Regardless, McGowan's contentions are procedurally barred, insufficiently pleaded, and meritless.

Although McGowan alleged in his petition, as he does on appeal, that he was not legally competent to stand trial, his arguments appear to truly be nothing more than a procedural claim -- that the trial court “failed to provide [him] the jury determination on his competency to which he was entitled.” (C. 1042.) Indeed, McGowan reiterated that, “[b]ecause [he] was denied a jury trial on his competency, despite the presentation of evidence raising serious doubt about that competency, and because [he] was likely not, in fact, competent to stand trial, his convictions and death sentence must be reversed.” (C. 1042 (emphasis added).) (See also C. 1042-1048 (arguing that it was “likely” he was incompetent based on his IQ scores, school records, and injuries and that he was “at the very least” entitled to a hearing on competency).) McGowan's procedural claim that he was deprived of a hearing and a jury determination as to his competency to stand trial is, as the State argues, precluded under Rule 32.2(a) (3) and (5) because it could have been raised at trial or on direct appeal. See, e.g., P.R.M. v. State, 286 So. 3d 72, 74 (Ala. Crim. App. 2019) (“[C]laims relating to a petitioner's competency to stand trial that are procedural in nature are not jurisdictional and are subject to the preclusions in Rule 32.2.” (citing Nicks v. State, 783 So. 2d 895, 906-08 (Ala. Crim. App. 1999))).

To the extent that McGowan's claim could be construed as raising a substantive-due-process claim that he was incompetent, that claim “is jurisdictional and not subject to the preclusions in Rule 32.” P.R.M., 286 So. 3d at 74 (citing Nicks, supra). However, any substantive claim that McGowan was incompetent was insufficiently pleaded. McGowan repeatedly contended in his petition that it was “likely” that he was not competent. This was purely a speculative claim, and “[s]peculation is not sufficient to satisfy a ․ petitioner's burden of pleading.” Mashburn, 148 So. 3d at 1125. At best, McGowan pleaded merely the “conclusion” that he was incompetent and “pleaded no facts in his petition regarding his mental state at the time” of his trial.” P.R.M., 286 So. 3d at 75. Rule 11.1, Ala. R. Crim. P., provides 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.” “Because [McGowan] pleaded only a conclusion with no facts in support, he failed to satisfy his burden of pleading that he was, in fact, incompetent at the time he” proceeded to trial. P.R.M., 286 So. 3d at 75. McGowan pleaded facts that he had a low IQ, a poor academic record, and head injuries, but none of those facts concerned his “ability to assist in his defense or to his having a reasonable degree of rational understanding of the facts and legal proceedings against him.” State v. Glass, 375 So. 3d 151, 157 (Ala. Crim. App. 2022). “ ‘[T]he law is clear that [p]roof of the incompetence of an accused to stand trial involves more than simply showing that the accused has mental problems or psychological difficulties.’ ” Id. (quoting Connally v. State, 33 So. 3d 618, 621-22 (Ala. Crim. App. 2007)). And, although he says, “on information and belief,” that a caseworker and medical records show he was unfit to be tried, McGowan never alleges what caseworker, what medical records, when he was treated, or whether his ability to stand trial was assessed. Nor does an assertion based upon “information and belief” satisfy the Rule 32 pleading requirements.

In addition, the substantive claim that McGowan was incompetent at the time of trial is refuted by the record and, thus, without merit because a competency evaluation was done and McGowan was found competent to stand trial. McGowan's trial counsel moved for a court-ordered evaluation of McGowan's mental condition at the time of the offenses and of his competency to stand trial, and that motion was granted. Although no competency evaluation appears in the trial record, at a pretrial hearing the court explained that its order was merely a “form order,” and, furthermore, Dr. deFrancisco ⁶ filed his competency evaluation of McGowan on October 3, 1995, and Dr. deFrancisco's “opinion was that ․ Mr. McGowan [is] competent to assist his attorneys in his defense, to fully participate in the upcoming trial.” (TR. 281.) Dr. deFrancisco's evaluation was part of the court's file and was made available to all the parties, but it was never addressed again. Clearly, Dr. deFrancisco evaluated McGowan, was well aware of his mental difficulties, and testified on his behalf in detail about those difficulties during the penalty phase of McGowan's trial, but he nonetheless determined that McGowan was competent to stand trial, as the trial court stated on the record.

D.

McGowan also contends that the circuit court erred by summarily dismissing his juror-misconduct claims as being insufficiently pleaded, without merit, and precluded. According to McGowan, “members of the jury were exposed to improper outside influences (such as the media and other members of the community); failed to disclose material information during voir dire (such as one juror's status as a potential witness of events relevant to the crime); and fell asleep during his trial.” (McGowan's brief, pp. 36-37.) McGowan also contends that “the State's failure to retain the voir dire questionnaires denied him due process by frustrating his right to receive a meaningful review of his conviction and sentence.” (McGowan's brief, p. 37.) McGowan contends that these claims were sufficiently pleaded, faults the circuit court for finding them meritless without “any explanation,” and baldly contends that “juror misconduct claims can be raised for the first time in Rule 32 proceedings, even if they could have been raised at trial or on appeal.” (McGowan's brief, pp. 36-37.) Because McGowan fails to explain how his contentions were sufficiently pleaded, why the circuit court erred by not explaining its determination on the merits, and why his contentions are not precluded, his brief does not comply with Rule 28(a)(1). Thus, his juror-misconduct claims are waived.

Even so, the circuit court's summary dismissal of McGowan's juror-misconduct claims was proper. Although the State contended that his juror-misconduct claims were procedurally barred, McGowan never attempted to overcome that hurdle in his “Opposition to the State's Motion to Dismiss” but, instead, continued to argue that juror-misconduct claims can be raised “even if they could have been raised at trial or on appeal” (C. 1325; McGowan's brief, p. 37) and cited Ex parte Burgess, 21 So. 3d 746 (Ala. 2008). However, this Court has explained that the juror-misconduct claim in Burgess was not precluded

“[b]ecause Burgess had alleged facts indicating that his counsel was unaware of the juror-misconduct claim until it was too late to raise the claim at trial or on appeal and had alleged facts indicating that ‘nothing occurred during the trial or appears in the record that could have alerted him or his counsel to the [alleged juror misconduct].’ ”

Jenkins v. State, 105 So. 3d 1234, 1239 (quoting Ex parte Burgess, 721 So. 3d at 751). This Court in Jenkins went on to explain that, in Ex parte Burgess, “the Alabama Supreme Court held that this Court [had] erroneously determined, at the pleading stage, that Burgess's juror-misconduct claim was procedurally barred pursuant to Rule 32.2(a)(3) and (a)(5).” Id. In Jenkins, this Court further noted that, in Ex parte Burgess, the Alabama Supreme Court had explained that “it was unreasonable to require trial or appellate counsel to blindly investigate possible juror-misconduct claims and that Burgess had alleged in his petition that he had no reason to suspect any juror misconduct.” Id. However, it is the petitioner's burden to show “that he could not have reasonably discovered the alleged juror misconduct in time to raise the claims in a motion for a new trial or on appeal.” Ex parte Burgess, 21 So. 3d at 754.

Here, McGowan's claim regarding exposure to the media and hostility by the community concerned the jury being allowed to separate “over his objection,” a claim that was raised and rejected both at trial and on appeal, McGowan, 990 So. 2d at 964, making it precluded under Rule 32.2(a)(3) and (5) and meritless. McGowan's claim that jurors fell asleep during his trial and “some for over thirty minutes” (C. 1105) clearly could have reasonably been discovered and raised either at trial or on appeal. Thus, these claims were precluded under Rule 32.2(a)(2) and (4) and were insufficiently pleaded because, in his “Opposition to the State's Motion to Dismiss” and on appeal, McGowan failed to name any specific jurors who were sleeping. (C. 1105, McGowan's brief, p. 37.)

Only McGowan's claim that one juror failed to disclose his status “as a potential witness of events relevant to the crime” (McGowan's brief, p. 37) was not precluded. However, it was insufficiently pleaded because, even on appeal, McGowan merely speculates that the juror was a “potential” witness, and in his petition, he alleged that, “on information and belief,” the juror “failed to disclose ․ during voir dire” that he “was at the Shell gas station when Mr. McGowan came to see Lois Harper.” (C. 1101.) Speculation and claims made upon “information and belief” do not satisfy the burden of pleading. This Court has explained that “alleging ‘upon information and belief’ ․ is nothing more than a speculative assertion.” Brooks v. State, 340 So. 3d 410, 474 (Ala. Crim. App. 2020). Nor did McGowan plead any questions that were asked that he failed to truthfully answer. “First and foremost, when pursuing a claim of juror misconduct, the [defendant] must establish the misconduct actually occurred.” Jackson v. State, 133 So. 3d 420, 441 (Ala. Crim. App. 2009). “ ‘A defendant [seeking relief] on the basis of juror misconduct has the initial burden to prove that a juror or jurors did in fact commit the alleged misconduct.’ ” Id. (quoting Dawson v. State, 710 So. 2d 472, 475 (Ala. 1997)). “Parties ․ are entitled to true and honest answers to their questions on voir dire.” Ex parte Dobyne, 805 So. 2d at 771. But, for any juror misconduct to occur, the juror must first know about the information and fail to truthfully disclose it. Id. McGowan failed to sufficiently plead a juror-misconduct claim because he failed to plead what question was asked that juror S.E. did not respond to in a truthful manner.

To the extent that McGowan attempts to overcome the pleading requirements by arguing that the State failed to retain the juror questionnaires, that claim is meritless. See, e.g., Phillips v. State, 287 So. 3d 1063, 1094 (Ala. Crim. App. 2015) (holding that the circuit clerk's destruction of the juror questionnaires after only one year was not “plain error”). We also note that, to the extent that McGowan identified other juror-misconduct claims in his petition, he has abandoned those claims by not raising them in his brief on direct appeal. In relation to such nonjurisdictional claims, this Court has not wavered in holding that “[w]e will not review issues not listed and argued in brief.” Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995).

E.

McGowan's last non-Atkins claim is the following laundry list of contentions: “the length of time between his conviction and eventual execution is so lengthy as to violate the U.S. Constitution and the Alabama Constitution,” “there was insufficient evidence as a matter of law to sentence him to death under Alabama's requisite ‘heinous, atrocious, or cruel’ aggravating factor,” that the State violated Brady v. Maryland, 373 U.S. 83 (1963), because it “ ‘may have withheld information regarding Dedree Crane and Frank Porter’ ” that could have provided additional material for impeachment” and “may have withheld disciplinary or investigative records regarding Agent Benson and Investigator Ikner,” “the court erroneously failed to instruct the jury that an accomplice's testimony is insufficient to support a capital murder conviction,” “the trial court erred by excluding jurors who expressed reservations about imposing the death penalty,” and he was disproportionately sentenced because Crane, his accomplice, received a sentence of life imprisonment with the possibility of parole. (McGowan's brief, pp. 38-41 (emphasis added).) First, McGowan again fails to recognize that the circuit court is not required to make any fact finding when summarily dismissing a claim under Rule 32.7(d). Moreover, as explained below, the claims McGowan lists in his brief to this Court were all properly summarily dismissed.

1.

McGowan contends that the length of time between his conviction and eventual execution violates both the Alabama Constitution and the United States Constitution, but the only binding precedent he cites, In re Medley, 134 U.S. 160 (1890), addressed an ex post facto violation, not a claim that a delay in execution constituted cruel and unusual punishment. The other authorities McGowan cites are nonbinding opinions that do not convince this Court that the delay in this case violated McGowan's constitutional rights. In Ex parte Bush, 695 So. 2d 138 (Ala. 1997), the Alabama Supreme Court addressed a similar argument and rejected the claim that a 16-year delay in execution constitutes cruel and unusual punishment, recognizing that delays are caused by death-row inmates “ ‘avail[ing themselves] of procedures our law provides to ensure that executions are carried out only in appropriate circumstances.’ ” Id. at 140 (quoting McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir. 1995)). Thus, the Alabama Supreme Court found “no merit in Bush's argument that the same constitutional protections that have kept him from being executed for the past 16 years are simultaneously violating his constitutional rights.” Id. at 140. Likewise, the delay in this case, albeit lengthy, has not violated McGowan's constitutional rights, and this claim was properly summarily dismissed because it is without merit.

2.

McGowan next contends that the circuit court erred by rejecting on the merits his contention that there was insufficient evidence of the “especially heinous, atrocious, or cruel” aggravating circumstance. More specifically, McGowan contends that no evidence was offered that his capital offenses were “especially heinous, atrocious, or cruel compared to other capital offenses.” (McGowan's brief, p. 39 (quoting § 13A-5-49(8), Ala. Code 1975).) By providing no argument or any citation to any legal authority, other than the statutory definition of the “especially heinous, atrocious, or cruel” aggravating circumstance, in support of his claim, McGowan has waived review of this claim under Rule 28(a)(10), Ala. R. App. P.

Regardless, this claim was properly summarily dismissed because it was precluded under Rule 32.2(a)(3) and (5) because it could have been raised in the trial court and on appeal and was not and because it was meritless. This Court has expressly rejected the claim that “a comparative analysis of the facts of [a defendant's] crime with those in other cases” is necessary to establish the “especially heinous, atrocious, or cruel” aggravating circumstance.” Mitchell v. State, 84 So. 3d 968, 985 (Ala. Crim. App. 2010). This Court recognized that the “especially heinous, atrocious, or cruel” aggravating circumstance applies to “those conscienceless or pitiless homicides which are unnecessarily torturous to the victim.” Id. at 986. We then noted that, rather than requiring comparisons,

“ ‘ “[t]here are three factors generally recognized as indicating that a capital offense is especially heinous, atrocious, or cruel: (1) the infliction on the victim of physical violence beyond that necessary or sufficient to cause death; (2) appreciable suffering by the victim after the assault that ultimately resulted in death; and (3) the infliction of psychological torture on the victim.” ’ ”

Id. (quoting Saunders v. State, 10 So. 3d 53, 108 (Ala. Crim. App. 2007), quoting in turn Brooks v. State, 973 So. 2d 380, 417-18 (Ala. Crim. App. 2007)). Moreover, in affirming McGowan's death sentence on direct appeal, this Court reviewed the trial court's finding that the capital offenses were “especially heinous, atrocious, or cruel” and stated: “By any definition, the murders in this case were especially heinous, atrocious, or cruel compared to other capital murders.” McGowan, 990 So. 2d at 1005.

3.

McGowan also contends that the circuit court erroneously dismissed his Brady claim. McGowan then sets forth his claim as follows: “McGowan specifically pleaded that the State ‘may have withheld information regarding Dedree Crane and Frank Porter’ that could have provided additional material for impeachment” and “specifically pleaded that the State ‘may have withheld disciplinary or investigative records regarding’ Agent Benson and Investigator Ikner.” (McGowan's brief, p. 40 (quoting C. 1111).) McGowan also lists some information that “might have” been revealed. (McGowan's brief, p. 40.) Because McGowan has not addressed on appeal the circuit court's finding that this claim was precluded under Rule 32.2(a) and because he has not explained how his claim was sufficiently pleaded, he has waived review of this claim. See, e.g., Woodward, 276 So. 3d at 746 (holding Woodward's argument waived because “he ma[d]e no argument regarding why he believe[d] the circuit court's findings were incorrect”).

Regardless, this claim was properly summarily dismissed as being insufficiently pleaded and procedurally barred. The State asserted below that this claim was insufficiently pleaded because it was speculative. The State further argued that the claim was precluded by Rule 32.2(a)(3) and (5) and that McGowan had failed to plead sufficient facts indicating that the claim could not have been raised at trial or on appeal. (C. 1138-39.) In his “Opposition to the State's Motion to Dismiss,” McGowan pleaded no facts to overcome these grounds of preclusion and attempted to sufficiently plead his Brady claim by adding the contention that “the District Attorney's office failed to turn over blood specimens found at the crime scene that matched neither the victims nor Mr. McGowan” and by further contending that “the State may have withheld disciplinary or investigative records” related to Larry Ikner, Simon Benson, Dedree Crane, and Frank Porter.” (C. 1334 (emphasis added).) This claim is procedurally barred because it could have been raised at trial.

“[A]lthough [McGowan] does not have to prove that his Brady [v. Maryland, 373 U.S. 83 (1963),] claim is based on ‘newly discovered material facts’ as defined under Rule 32.1(e)(1)-(5), he must still plead facts indicating that his claim could not have been raised at trial or on direct appeal to avoid being procedurally barred under Rule 32.2(a)(3) and 32.2(a)(5). This requires [McGowan] to plead that the State's alleged concealment ․ ‘was not known, and could not reasonably have been discovered, at trial or in time to raise the issue in a motion for new trial or on appeal.’ [Ex parte] Pierce, 851 So. 2d [606] at 616 [(Ala. 2000)].”

McWhorter v. State, 142 So. 3d 1195, 1261 (Ala. Crim. App. 2011). Certainly, McGowan's counsel was aware at trial, and on appeal, that they had not been given any blood specimens found at the crime scene. Moreover, the remaining claim was purely speculative. Aside from not identifying what disciplinary or investigative records were withheld and what those records contained, McGowan did not even allege that any records or information were actually withheld; rather, he asserted below and in his brief to this Court only that they may have been withheld. See Mashburn, 148 So. 3d at 1125 (“Speculation is not sufficient to satisfy a Rule 32 petitioner's burden of pleading.”). We further note that, to the extent that McGowan has attempted to add new details to his claim on appeal that were neither alleged in his petition nor in his “Opposition to the State's Motion to Dismiss,” those facts may not be considered because “ ‘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 (Ala. Crim. App. 2003) (quoting Boyd v. State, 746 So. 2d 364, 406 (Ala. Crim. App. 1999)). It is simply too late to attempt to satisfy the pleading requirements on appeal.

4.

McGowan argues that the following additional contentions were sufficiently pleaded: 1) that “the trial court erroneously failed to instruct the jury that an accomplice's testimony is insufficient to support a capital murder conviction,” 2) that “the trial court erred by excluding jurors who expressed reservations about imposing the death penalty,” and 3) that he was disproportionately sentenced because Crane received a sentence of life imprisonment with the possibility of parole. (McGowan's brief, pp. 40-41.)

Each of these contentions made by McGowan were insufficiently pleaded and are precluded. Moreover, as the State contended below and on appeal, these contentions are without merit. Regarding McGowan's argument about the need for a jury instruction on the sufficiency of accomplice testimony, this Court held on direct appeal that “the State presented sufficient evidence that tended to connect McGowan with the commission of the crimes. We need look no further than the independent- witness testimony that McGowan procured the murder weapon shortly before the crimes and that he and Crane fled to other states following the murders.” McGowan, 990 So. 2d at 987. Moreover, “three or four months before the murders,” McGowan told Frank Porter that “they should rob the Johnsons because Mr. Johnson had ‘too much money on him.’ ” Id. at 945. Similarly, “one to two weeks before the murders,” McGowan told Ronnie Harper that he knew there was an elderly couple that “ ‘lived near Travis Bridge [who he] and [Harper] could kill and get away with it.’ ” Id. at 947. Regarding his argument about the trial court's exclusion of jurors, McGowan never pleaded what jurors should have been excluded based on their views of the death penalty, but he did raise a challenge in the trial court to the State's challenge for cause of four venirepersons on this ground. On direct appeal, this Court addressed and rejected McGowan's argument that the prospective jurors should not have been excused for cause. Specifically, we held that “[t]he views of the four potential jurors [in opposition to the death penalty] would have interfered with their duty, and ․ the trial court properly excused them for cause.” Id. at 984. McGowan's third contention regarding his allegedly disproportionate sentence is also without merit. Although he cites a case from North Carolina holding that application of the death penalty to the defendant in that case was disproportionate when compared to his accomplice and to defendants in other cases, Alabama has “declined to abandon the practice of individualized sentencing based on a defendant's particular role in the capital offense.” Lewis v. State, 24 So. 3d 480, 531-32 (Ala. Crim. App. 2006). In Taylor v. State, 808 So. 2d 1148 (Ala. Crim. App. 2000), for example, “this Court upheld imposition of Taylor's death sentence based on the fact that Taylor --- and not his codefendant -- was the triggerman who actually shot and killed the victim.” Id. Likewise, in Lewis, we held that “the fact that the trial court sentenced Lewis's codefendant to life imprisonment without the possibility of parole [does not] render Lewis's death sentence ‘excessive and disproportionate,’ given that the evidence indicated that Lewis, the defendant, rather than Free, the codefendant, was the triggerman in Kaye's murder.” Id. at 532. Here, as in Lewis and Taylor, McGowan, not Crane, was the “triggerman” or, in this case, the one who brutally bludgeoned his elderly victims to death with a hammer. The circuit court did not err by summarily dismissing this claim.

F.

Finally, we note that McGowan raised additional claims in his petition that he did not reassert in his original brief on appeal. McGowan's various claims and contentions that were not specifically reasserted in his original brief on appeal are deemed abandoned because “[w]e will not review issues not listed and argued in brief.” Brownlee v. State, 666 So. 2d 91, 93 (Ala. Crim. App. 1995). Moreover, we note that any attempts to cure the waiver of arguments in a reply brief fail. Generally, “ ‘[w]here an appellant first cites authority for an argument in his reply brief, it is as if the argument was first raised in that reply brief, and it will not be considered.’ ” Moore v. Mikul, 359 So. 3d 274, 278 (Ala. 2022) (quoting Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005)). In short, just like an argument cannot be raised for the first time on appeal, “ ‘ “an argument [also] may not be raised, nor may an argument be supported by citations to authority, for the first time in an appellant's reply brief.” ’ ” Id. (citations omitted).

II. Atkins Claim

McGowan next argues that the circuit court erred by finding that he failed to prove by a preponderance of the evidence his claim that he is intellectually disabled and thus ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).

We first note that, although the circuit court held an evidentiary hearing on this claim and denied it based on the merits, the State contended below that this claim was procedurally barred under Rule 32.2(a)(4) because it was raised and addressed on direct appeal. (C. 1123-24.) Although Atkins was decided after McGowan's conviction and sentence, while his direct appeal was pending in this Court, “we requested that the parties brief the impact of the decision in Atkins on McGowan's death sentence.” McGowan, 990 So. 2d at 998. McGowan argued “that every expert who has conducted IQ tests on him has found that he is mentally retarded, that he has the mental age of a 10-year old, and that he reads at a third-grade reading level.” Id. This Court, however, found that “[t]here is no evidence in the record indicating that McGowan has significant or substantial deficits in adaptive behavior or that his IQ is significantly subaverage.” Id. at 999. Indeed, “McGowan's expert testified that McGowan has a full-scale IQ of 76.” Id. We further noted that “McGowan had been married twice and that he had one child.” Id. McGowan also “had maintained construction jobs” and worked as a mechanic. Id. We then concluded: “There is nothing in the record that prohibits the State from imposing the death sentence on McGowan. McGowan's death sentence does not violate Atkins.” Id. Although an issue “raised on direct appeal and addressed on its merits” would typically be “procedurally barred by Rule 32.2(a)(4), [Ala. R. Crim. P.],” Yeomans v. State, 195 So. 3d 1018, 1048 (Ala. Crim. App. 2013), we hold that, under the unique procedural history of this case, McGowan was not precluded from raising his Atkins claim in this, his first, Rule 32 petition. Previous appellate- court decisions have made it clear that the circuit court was correct in holding an evidentiary hearing on McGowan's Atkins claim rather than determining that the issue was procedurally barred.

The Alabama Supreme Court has indicated that, when an Atkins argument has been briefed on appeal but no hearing was held in the trial court, circuit courts should permit an evidentiary hearing on an Atkins claim. See, e.g., Ex parte Smith, 213 So. 3d 214 (Ala. 2003) (Smith raised an Atkins claim in his petition for certiorari review, and the Alabama Supreme Court held that the facts did not support a finding that Smith was mentally retarded and, thus, ineligible for the death penalty but, nevertheless remanded the case for the trial court to conduct a new penalty-phase proceeding based on the erroneous exclusion of some mitigating evidence); Smith v. State, 213 So. 3d 239, 242, 250 (Ala. 2007) (because the circuit court did not issue a ruling on Smith's Atkins claim on remand, the Alabama Supreme Court remanded again for the circuit court to “conduct an Atkins hearing and make an explicit determination whether Smith is mentally retarded and, consequently, ineligible for the death penalty.” “[B]ecause our holding with regard to Smith's Atkins claim consisted of a plain-error review based solely on the record that was before us, if new facts were presented on remand that would change the result of our analysis in Ex parte Smith, then litigation of the Atkins claim was proper.”). In sum, the Atkins question “ ‘involves a factual finding based on weight and credibility determinations, determinations that are better left in the first instance to the trial court, which had the opportunity to personally observe the witnesses and assess their credibility.’ ” Smith v. State, 213 So. 3d at 253 (quoting Smith v. State, 213 So. 3d 226, 239 (Ala. Crim. App. 2003) (Shaw, J., dissenting). Thus, “[i]n the rare situation, such as the one presented here -- where the defendant had already been convicted and sentenced to death but his case was pending on appeal at the time Atkins was released -- the defendant is allowed to have the claim reviewed by the trial court if the case is remanded and new evidence of mental retardation is presented.” Smith v. State, 213 So. 3d at 253-54. “This procedure gives the defendant an initial opportunity to properly present and litigate his Atkins claim in the trial court, and it serves to promote judicial economy.” Id. at 254. Although McGowan's case was in a different procedural posture than Ex parte Smith, McGowan was entitled to an evidentiary hearing on the Atkins issue, but he was only given an opportunity to brief the issue, not present evidence, during his direct appeal. The Atkins issue was subsequently raised by McGowan in a timely filed postconviction petition, and the State ultimately conceded that an evidentiary hearing on McGowan's Atkins claim was appropriate. (R. 3-4.) The circuit court then held a hearing on McGowan's Atkins claim. Thus, we hold that McGowan's Atkins claim was not precluded by Rule 32.2, and we will consider the merits of the circuit court's denial of McGowan's Atkins claim.

In Atkins v. Virginia, the United States Supreme Court held that it is a violation of the Eighth Amendment's protection against cruel and unusual punishment to execute an individual who is “mentally retarded.” The Supreme Court left it to the States to determine the definition of “mental retardation.” However, the Atkins Court noted that “clinical definitions of mental retardation require not only subaverage intellectual functioning, but also significant limitations in adaptive skills such as communication, self-care, and self-direction that became manifest before age 18.” Id. at 318.

In Ex parte Perkins, 851 So. 2d 453, 456 (Ala. 2002), the Alabama Supreme Court adopted the “broadest definition” of “mental retardation” and held that, to prove what is now referred to as “intellectual disability,” a defendant “must have significantly subaverage intellectual functioning (as demonstrated by an IQ of 70 or below), and significant or substantial deficits in adaptive behavior.” “Additionally, these problems must have manifested themselves during the developmental period (i.e., before the defendant reached age 18).” Id.

In Smith v. State, 213 So. 3d 239 (Ala. 2007), the Alabama Supreme Court further explained:

“All three factors must be met in order for a person to be classified as mentally retarded for purposes of an Atkins [v. Virginia, 536 U.S. 304 (2002),] claim. Implicit in the definition is that the subaverage intellectual functioning and the deficits in adaptive behavior must be present at the time the crime was committed as well as having manifested themselves before age 18. This conclusion finds support in examining the facts we found relevant in Ex parte Perkins and Ex parte Smith[, 213 So. 3d 214 (Ala. 2003),] and finds further support in the Atkins decision itself, in which the United States Supreme Court noted: ‘The American Association on Mental Retardation (AAMR) defines mental retardation as follows: “Mental retardation refers to substantial limitations in present functioning.” ’ 536 U.S. at 308 n. 3 (second emphasis added). Therefore, 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.”

Smith v. State, 213 So. 3d 239, 248 (Ala. 2007) (some emphasis added).

In Ex parte Smith, 213 So. 3d 313, 318 (Ala. 2010), Smith argued that, in affirming the circuit court's finding that he was not intellectually disabled, our Court “placed more emphasis on his present-day adaptive functioning than on his adaptive functioning at the time of the offense.” Id. at 318. The Alabama Supreme Court noted that the United States Supreme Court has recognized the “ ‘abundant evidence that [the mentally retarded] often act on impulse rather than pursuant to a premeditated plan, and ․ they are followers rather than leaders.’ ” Ex part Smith, 213 So. 3d at 318 (quoting Atkins, 536 U.S. at 318). The Alabama Supreme Court then stated that “all three Perkins factors must be proven in order for a person to be classified as mentally retarded for purposes of an Atkins claim, and Smith has not demonstrated significant or substantial deficits in adaptive behavior during the commission of these murders.” Id. at 320. The Court found “especially persuasive Smith's behavior during the commission of these murders.” Id. at 320. Specifically, the Alabama Supreme Court concluded that this Court affirmed the trial court's finding that Smith was not intellectually disabled because his crimes were “not the impulsive actions of a mentally retarded person who cannot understand the consequences of his actions as contemplated by the United States Supreme Court in Atkins.” Id.

In Hall v. Florida, 572 U.S. 701 (2014), the United States Supreme Court again considered the Eighth Amendment's prohibition of the execution of those with “intellectual disability”⁷ and held that Florida's “rigid rule” that required an IQ test score of 70 or below to label an individual “intellectually disabled” “create[d] an unacceptable risk that persons with intellectual disability will be executed” and was, thus, unconstitutional. Id. at 704, 721. The Hall Court also noted that “an individual's ability or lack of ability to adapt or adjust to the requirements of daily life, and success or lack of success in doing so, is central to the framework followed by psychiatrists and other professionals in diagnosing intellectual disability.” Id. at 706 (citing DSM-5, at 37). The Hall Court then recognized that “[t]he professionals who design, administer, and interpret IQ tests have agreed, for years now, that IQ test scores should be read not as a single fixed number but as a range.” Id. at 712. Specifically, the Hall Court noted that “[e]ach IQ test has a ‘standard error of measurement ․ ‘SEM.’ ” Id. at 713. “The SEM reflects the reality that an individual's intellectual functioning cannot be reduced to a single numerical score.” Id. “[A]n individual's score is best understood as a range of scores on either side of the recorded score ․ within which one may say an individual's true IQ score lives.” Id. [W]hether an intellectual disability exists once the SEM applies and the individual's IQ score is 75 or below the inquiry would consider factors indicating whether the person had deficits in adaptive functioning.” Id. at 714 (emphasis added). In short, “[a]n IQ score is an approximation, not a final and infallible assessment of intellectual functioning.” Id. at 722. The Hall Court ultimately held that, “when a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 723 (emphasis added). Thus, Hall requires that, when an IQ score, considering the range produced by the SEM, indicates an IQ of “approximately 70,” the defendant must be able to present evidence of adaptive deficits before a court may determine whether he or she is intellectually disabled. Id. at 724. Notably, although “Hall had received nine IQ evaluations in 40 years, with scores ranging from 60 to 80,” the United States Supreme Court did not instruct other courts on how to consider multiple IQ test scores. Id. at 707. Likewise, the Hall Court did not address the sentencing court's decision to exclude “two scores below 70 for evidentiary reasons.” Id. Nonetheless, the Hall Court seemingly focused on the lowest remaining IQ score of 71 (Hall's remaining scores were between 71 and 80), noting that such a score “is generally considered to reflect a range between 66 and 76 with 95% confidence.” Id. at 713 (citing DSM-5, at 37). However, the Court stated that, “[e]ven when a person has taken multiple tests, each separate score must be assessed using the SEM, and the analysis of multiple IQ scores jointly is a complicated endeavor.” Id. at 714 (emphasis added). The Hall Court further noted that “even a consistent score is not conclusive evidence of intellectual functioning.” Id. In short, “Hall instructs that, where an IQ score is close to, but above, 70, courts must account for the test's ‘standard error of measurement.’ ” Moore v. Texas, 581 U.S. 1, 13 (2017) (emphasis added). See also Brumfield v. Cain, 576 U.S. 305, 315-16 (2015) (noting that “Brumfield's reported IQ test result of 75 was squarely in the range of potential intellectual disability” and holding that the state court's determination that an IQ score of 75 precluded a finding of intellectual disability was “an unreasonable determination of the facts”).

In Moore v. Texas, the Supreme Court reversed the decision of the Texas Court of Criminal Appeals (“CCA”) that had rejected the state habeas court's recommendations that Moore was intellectually disabled. Notably, the Supreme Court did not take issue with the CCA's “[r]ejecting as unreliable five of the seven IQ tests the habeas court had considered” and “limit[ing] its appraisal to Moore's scores of 78 in 1973 and 74 in 1989.” 581 U.S. at 10. However, the Supreme Court again focused on the lower score, noting that “Moore's score of 74 adjusted for the standard error of measurement yields a range of 69 to 79.” 581 U.S. at 14 (emphasis added). And, the Moore Court explained that “courts [must] continue the [intellectual-disability] inquiry and consider other evidence of intellectual disability where an individual's IQ score, adjusted for the test's standard error, falls within the clinically established range for intellectual functioning deficits.” Id. at 15 (emphasis added). In short, “[b]ecause the lower end of Moore's score range falls at or below 70, the CCA had to move on to consider Moore's adaptive functioning,” including his adaptive deficits. Id. at 14. In considering adaptive function, the Moore Court noted that the CCA “overemphasized Moore's perceived adaptive strengths” and that “the medical community focuses the adaptive-functioning inquiry on adaptive deficits.” Id. at 15 (emphasis added). Accordingly, the Moore Court held that the CCA had erred by making its determination that Moore was not intellectually disabled based on factors set forth in caselaw rather than applying “the medical community's current standards.” Id. at 20-21. The Moore Court also indicated that the DSM-5 established “current medical diagnostic standards.” Id. at 7. In addition, the Moore Court noted that “clinicians look to whether an individual's adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).” Id. at 8. “Moore's performance fell roughly two standard deviations below the mean in all three skill categories.” Id.

Finally, we note that “[i]ntellectual disability must be proven by a preponderance of the evidence.” Ex parte Lane, 286 So. 3d 61, 66 (Ala. 2018) (citing Ex parte Smith, 213 So. 3d 313, 319 (Ala. 2010)). In addition, “[a] trial court's determination regarding that issue is entitled to deference on appeal.” Id. A circuit court abuses its discretion only “ ‘ “where the record contains no evidence on which [the judge] rationally could have based [the] decision.” ’ ” Id. (quoting Lane v. State, 169 So. 3d 1076, 1094 (Ala. Crim. App. 2013), quoting in turn Hodges v. State, 926 So. 2d 1060, 1072 (Ala. Crim. App. 2005)).

Applying these principles and recognizing that “the burden of proving a defendant's [intellectual disability] in an Atkins hearing is the defendant's and that the trial court's conclusions as to the defendant's [intellectual disability] are entitled to deference by an appellate court,” Ex parte Smith, 213 So. 3d at 319, for the reasons explained below, we hold that the circuit court did not abuse its discretion by denying McGowan's claim that he is intellectually disabled under Atkins.

A. Subaverage Intellectual Functioning

McGowan first argues that the evidence shows that his “ ‘true’ IQ score is ‘approximately’ 70.” (McGowan's brief, p. 44.) To reach this conclusion, McGowan argues that the circuit court erred by: 1) not considering his score of 63 on the Lorge-Thorndike test, which he took during his “developmental period”; 2) not recognizing the “Flynn Effect,” which, if applied, would lower his IQ scores so that the SEM range on his 1996 Wechsler Adult Intelligence Scale-Revised (“WAIS-R”) test and 2018 Stanford Binet test would then include “approximately 70”; 3) by refusing to consider the “practice effects” of taking two tests on the same day and, thus, considering the 82 McGowan scored on the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”), IQ test even though it was given immediately after the Stanford Binet test; and 4) by not considering the neuropsychological and testimonial evidence that, he says, should have been deemed sufficient to show his subaverage intellectual functioning when considered in conjunction with his IQ test scores.

1. Lorge-Thorndike Test

McGowan's school records show that he was given the “Lorge-Thorndike Intelligence Test” when he was 16 years old and that he scored a 63. (R. 206.) McGowan contends that this test should have been credited by the circuit court because it supports a finding that he had significant subaverage intellectual functioning during the developmental period. However, his own expert, clinical neuropsychologist Kristin Triebel, acknowledged that the Lorge-Thorndike test is no longer given as an IQ assessment. Dr. Triebel testified that the Lorge-Thorndike test was “a standardized measure of intelligence used” during “the fifties and sixties.” (R. 268, 271.) Dr. Triebel also admitted that she had never looked at the Lorge-Thorndike test and did not even know how it was administered. Dr. King, however, explained that the Lorge-Thorndike test was a group-administered test. (R. 357.) And, according to the “current ․ [and] most frequently used manual for diagnosing intellectual disability,” the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (“DSM-5-TR”), group-administered tests “are generally not to be relied on for establishing intellectual functioning.” (R. 333, 357.) Dr. King explained that, with a group test, as opposed to an individually administered test, “[y]ou can't observe what's going on with the person as they are taking it.” (R. 358.) For example, a test taker “may be looking out the window or doing all kinds of other things especially since they're kids and they only sample typically one domain.” (R. 358.) Regardless, Dr. King testified that group-administered tests tend to produce lower scores, and the Lorge-Thorndike group test was an even less accurate test for McGowan because “he couldn't read very well,” so it “certainly would not score what he truly was able to do.” (R. 358.) Dr. King testified that he would “never rely” on a group test for establishing intellectual ability, and even Dr. Triebel acknowledged that the DSM-5-TR cautions that invalid scores may result from group IQ tests.

Based on the testimony at the Atkins hearing, the circuit court did not abuse its discretion by viewing McGowan's score on an outdated test that was administered in an unreliable group setting with “suspicion.” The circuit court, thus, properly focused its determination of the first Atkins requirement based on the three reliable, valid IQ test scores.

In 1996, McGowan received a full-scale score of 76 on the WAIS-R. In 2018, McGowan received full-scale test scores of 82 on the WAIS-IV and 77 on the Stanford Binet. The DSM-5-TR states: “Individuals with intellectual development disorder have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error generally plus or minus five points.” (R. 146 (emphasis added).) Based on both Atkins jurisprudence and current medical standards, the circuit court was required to consider McGowan's IQ range based on the SEM, which it did. The circuit court held that, “[e]ven factoring in a five-point SEM, this Court finds that none of McGowan's scores fall within the range of significantly subaverage intellectual functioning.” (C. 1626.) McGowan's three valid test scores that were considered by the circuit court had ranges of 77 to 87, 72 to 82, and 71 to 81. Although nothing in Atkins jurisprudence requires courts to focus on the lowest, valid score a defendant receives, even considering the lowest end of McGowan's lowest score range, his IQ was not 70 or below. As the circuit court recognized, “the lower end of his scores would run from 71 to 77.” (C. 1626.) In addition, Dr. King testified that each IQ test comes with its own “competence interval” and that using the test-specific competence intervals for each test would have yielded an even higher IQ range.⁸ Dr. King's opinion was that McGowan “functions in borderline range, ․ possibly the low average range” of intellectual functioning. Moreover, Dr. King testified that, even considering McGowan's lowest scores, McGowan was not within the range of significantly subaverage intellectual functioning based on his performance on valid IQ tests. And neither the United States Supreme Court nor the Alabama Supreme Court has required that an individual's lowest score be determinative. Indeed, courts should consider the complexity of multiple scores, which, here, do not indicate that McGowan was intellectually disabled. See Hall, 572 U.S. at 714. Thus, the circuit agreed with Dr. King that McGowan “does not suffer from an intellectual disability.” (C. 1626 (quoting R. 353).)

We further note that Dr. King's testimony detailing McGowan's IQ scores on the two tests he administered further supports the circuit court's finding that McGowan had not proven an intellectual disability. Dr. King explained that, although McGowan's full-scale score on the Stanford-Binet test was 77, his nonverbal and verbal IQ scores were both 78. In addition, McGowan scored between a low of 74 and a high of 89 on the various subtests, and his 89 on the knowledge subtest was even in the “average range.” (R. 332.) Likewise, although McGowan scored a full-scale IQ of 82 on the WAIS-IV, that test included four indexes, and McGowan's perceptual-reasoning score was a 92. Although a person may for various reasons, including malingering, produce an artificially lower score, logically, one cannot fake a higher score on an individual test, “ ‘meaning a person's higher IQ scores will more accurately reflect a person's capacity.’ ” Haliburton v. State, 331 So. 3d 640, 647 (Fla. 2021) (citation omitted). See also Nolen v. State, 485 P.3d 829, 843 (Okla. 2021) (“ ‘[Y]ou can't fake having better intelligence.’ ” (citation omitted)); People v. Woodruff, 5 Cal. 5th 697, 717, 421 P.3d 588, 607, 235 Cal. Rptr. 3d 513, 536 (2018) (“[I]t is not possible for an intellectually disabled individual to fake more aptitude than his true capacity.”); and Green v. Johnson, 515 F.3d 290, 300 (4th Cir. 2008) (“[A]lthough a person can fake a lower I.Q. score, a higher I.Q. score cannot be faked.”).

Moreover, although McGowan presented the testimony of two experts at the hearing, neuropsychologists Dr. George Woods and Dr. Triebel, Dr. Woods acknowledged that he did not administer any tests to McGowan and that his opinions were based solely on his other clinical experiences and reviewing of academic literature. Similarly, although Dr. Triebel administered various tests to McGowan, she did not administer an IQ test because “Dr. King had already given both the tests that we give for IQ testing.” (R. 189 (emphasis added).) Dr. Triebel also agreed that that the Stanford-Binet test was “a well-accepted measure of intellectual functioning” and that the WAIS-IV test was the “Gold Standard” for IQ tests. (R. 232, 276.) Based on the evidence presented, “McGowan did not meet his burden of establishing that he suffers from, or has ever suffered from, significantly subaverage intellectual functioning.” (C. 1626-27.) Thus, considering the unreliability of the Lorge-Thorndike test and the reliability of the three tests the circuit court considered, the circuit court did not abuse its discretion by excluding the Lorge-Thorndike test from its consideration, focusing on the more reliable and more recent scores, and finding that McGowan had failed to meet the first Atkins requirement.

2. Flynn Effect

McGowan next faults the circuit court for not finding that his 1996 score was “inflated by 4.5 points.” (McGowan's brief, p. 47.) He asserted that, based on the Flynn Effect, his score of 76 should be deemed only a 71.5. Thus, after the five point SEM is applied, the range of that test would, according to McGowan, be only 66.5 to 76.5, placing his IQ in the range of significantly subaverage intellectual function. McGowan likewise argues that his score of 77 on the Stanford Binet test should be lowered to 72.5 based on the Flynn Effect, making his SEM range 67.5 to 77.5. Notably, McGowan did not seek to apply the Flynn effect to the 82 he scored on the WAIS-IV. Regardless, the circuit court did not abuse its discretion by not applying the Flynn Effect.

In the wake of Atkins, various theories have been asserted that, if applied, would lower the IQ scores of death-row inmates, which, in some cases, would allow death-row inmates to meet the “70 or below” threshold that would require further inquiry into adaptive deficits. The Flynn Effect, which McGowan asked the circuit court (and now this Court on appeal) to apply before deciding whether his IQ scores satisfy the first prong of the Atkins inquiry, provides that a person's IQ test score will increase three points on the same test if it is given again after 10 years. As McGowan explains in his brief on appeal, the reasoning behind the Flynn Effect is that individuals taking older IQ tests will receive “ ‘overly high scores due to out-of-date test norms.’ ” (McGowan's brief, p. 47, quoting DSM-5-TR at 38.) Dr. Woods acknowledged that the Flynn Effect was discovered by a political scientist, not a doctor, and that there were “real concerns,” particularly from 2005 to 2008, about applying it. However, Dr. Woods testified that an IQ test should be adjusted upward by 0.3 every year based on the Flynn Effect. Both Dr. Woods and Dr. Triebel testified that the Flynn Effect should be applied here to lower McGowan's IQ scores so that his IQ range, after the SEM is also applied, would include a score of “70 or below” and support a finding that he was intellectually disabled.

Conversely, Dr. King testified that the Flynn Effect has been widely debated and that not only was it inapplicable, but that, “[s]tarting in about 2005 ․ there began to be articles ․ indicating that the Flynn Effect was reversing.” (R. 340 (emphasis added).) According to Dr. King, “the Flynn Effect appeared to have peaked around 1992 to 1995 and then started to decrease from there.” (R. 340.) Moreover, “[t]he only time [Dr. King had] seen ․ advocacy for applying the Flynn Effect is in capital murder cases.” (R. 341.) Dr. King specifically testified that no one adjusts IQ scores to account for the Flynn Effect in any context other than in “capital litigation cases.” (C. 446.) In short, Dr. King did not believe that the Flynn Effect should be used to decrease IQ scores and thus did not apply it to decrease McGowan's IQ scores. The circuit court agreed that “McGowan's obtained IQ scores should not be adjusted downward to account for the ‘so-called Flynn Effect,’ ” particularly “[g]iven the weakness of McGowan's evidence” and “the fact that the Flynn Effect is at most a ‘statistical anomaly’ and far from a proven constant that is readily applied to individual scores.” (C. 1633 (quoting Dunn v. Reeves, 594 U.S. 731, 736 (2021).)

Based on the evidence, the circuit court did not abuse its discretion in reconciling the conflicting testimony regarding the Flynn Effect, finding Dr. King's testimony more credible, and refusing to adjust McGowan's IQ scores using the widely debated theory. “It was for the circuit court to resolve conflicting evidence and the conflicting expert testimony, and it obviously resolved the conflicts adversely to” McGowan. Reeves v. State, 226 So. 3d 711, 743 (Ala. Crim. App. 2016).

Moreover, contrary to McGowan's assertions, the circuit court's rejection of the Flynn Effect does not conflict with legal precedent. The United States Supreme Court has recognized that the Flynn Effect is “a controversial theory.” Dunn v. Reeves, 594 U.S. at 736. Indeed, in Dunn, the Supreme Court noted that even the petitioner's expert recognized that the Flynn Effect ‘has not been accepted as scientifically valid by all courts’ and was ‘not settled in the psychological community.’ ” Id. (quoting Reeves v. State, 226 So. 3d 711, 739 (Ala. Crim. App. 2016)). McGowan and the State presented expert testimony to the circuit court regarding this issue, and this Court will not second guess the circuit court's decision that McGowan's IQ scores should not be lowered based upon the Flynn Effect.

3. Practice Effects

McGowan also contends that his score of 82 on the WAIS-IV should not have been considered by the circuit court because it was administered the same day as the Stanford-Binet test and that, according to his experts, his WAIS-IV score may have been artificially inflated by the “practice effects” or “overlap” in the tests. (McGowan's brief, p. 49.)

Dr. Woods testified that IQ tests are subject to inflation based on “practice.” He explained that the “Practice effect is ․ if you do something and then you do it again, there's a chance that you remember some of the steps that you did the first time and you remember some of the mistakes that you made and maybe not make those mistakes again.” (R. 125.) According to Dr. Woods, “there may be a great chance you will get a higher score on the second test than you did on the first time especially if you take the test within a short period of time.” (R. 125 (emphasis added).) Specifically, however, Dr. Woods testified that, when two tests are taken on the same day, if there is overlapping of the tasks involved, the second IQ test score may be inflated. Similarly, although Dr. Triebel recognized that the Stanford Binet and WAIS-IV IQ tests administered by Dr. King were both well-accepted and different tests, she further testified that it was not “good practice” to administer both on the same day because of “practice effects.” (R. 234.) According to Dr. Triebel, “[e]ven though they are different tests, they are still measuring similar concepts so you can definitely have practice effects.” (R. 235.) However, although Dr. Triebel testified that there is “overlap between the two tests,” she could not provide the circuit court a single example of the so- called “overlap,” and, in fact, Dr. Triebel testified that she had never “administered the Stanford-Binet before.” (R. 235-36.)

Dr. King then explained:

“Practice effect occurs when an individual is administered the same test on two separate occasions with not allowing a sufficient amount of time in between for the individuals who basically kind of forget what the original testing was. For example, on a Wechsler Adult Intelligence Scale the recommendation is not to re-administer that test within a minimum of six months but the manual really suggests a minimum of two years before there are any practice effects.”

(R. 326 (emphasis added).) Dr. King also testified that the Stanford Binet and WAIS-IV were different tests and were not even written by the same person. Dr. King also knew of no article, rule, or study that prohibits the administration of two different IQ tests on the same day. Dr. King then testified that there was only one “overlap” between the two tests that he administered to McGowan in 2018. Both tests had a vocabulary component, and each test had a question concerning the root word “curious,” specifically one test asked a question about the word “curios” and the other test asked about the word “curiosity.” However, Dr. King testified that, even if seeing the root word “curious” on the first test helped McGowan to answer a question correctly on the second test, correctly answering a singular question would have made no difference to his full-scale IQ score from that second test. (R. 395.)

In sum, as with the Flynn Effect, there was very little evidence indicating a significant practice effect that would have increased McGowan's score on the second test, the WAIS-IV, in 2018. Dr. Woods's testimony as to a practice effect was “speculative.” (C. 1627.) And, although Dr. Triebel and Dr. King presented conflicting views regarding any practice effect, the circuit court did not abuse its discretion by resolving that conflict adversely to McGowan and crediting Dr. King who administered both tests. Again, “[i]t was for the circuit court to resolve conflicting evidence and the conflicting expert testimony, and it obviously resolved the conflicts adversely to [the petitioner].” Reeves v. State, 226 So. 3d at 743.

4. Other Evidence

McGowan also argues that the other evidence he presented at the hearing (neuropsychological test results, lay-witness testimony, and some medical, school, and employment records) supported a finding that his IQ was “significantly subaverage” and should have been used by the circuit court to find that, regardless of his IQ test scores, his IQ was, nonetheless, “approximately 70.” We disagree and hold that the circuit court did not abuse its discretion by focusing on McGowan's three valid IQ scores in determining that McGowan did not meet the threshold Atkins requirement that McGowan's IQ was “significantly subaverage.”

To be sure, at the Atkins hearing, McGowan's experts attempted to undermine the IQ test scores. Dr. Triebel testified that the DSM-5-TR indicates that “IQ test scores are approximations of conceptual functioning.” (R. 177.) In addition, Dr. Woods and Dr. Triebel testified that, according to the DSM-5-TR, “a person with deficits in intellectual functioning whose IQ score is somewhat above sixty-five to seventy-five may nevertheless have substantial adaptive behavior problems in social judgment or other areas” such that “the person's actual functioning is clinically comparable to that of individuals with a lower IQ score.” (R. 146, 177-78 (emphasis added).) Dr. Woods also testified that, although a person's IQ has been considered determinative of the first criteria (“significantly subaverage intellectual functioning”), the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders and the current DSM-5-TR now include a clinical-assessment component, recognizing that “IQ tests are not completely determinative.” (R. 121.) Dr. Woods also testified that neuropsychological testing, environment, and background should be considered in addition to IQ test scores, but even Dr. Woods testified that he would never diagnose “intellectual disability without getting an IQ score.” (R. 147.) Furthermore, Dr. Triebel acknowledged that, although neuropsychological tests “overlap” with IQ tests, they “measure different ․ abilities ․ that are relative to adaptive functioning.” (R. 188 (emphasis added).)

Based on the United States Supreme Court's condemnation in Hall of a “strict cut-off” based on a score of 70, McGowan extrapolates that courts must consider other evidence along with IQ in determining whether the first Atkins requirement of significantly subaverage intellectual functioning is satisfied. McGowan also relies on this Court's statement in Reeves v. State, 226 So. 3d at 729, that “a court should look at all relevant evidence in assessing an intellectual-disability claim and that no one piece of evidence, such as an IQ test score, is conclusive as to intellectual disability.” McGowan, however, has misconstrued both Hall and Reeves.

The United States Supreme Court held in Hall that a single test score of 70 should not be conclusive of the first Atkins requirement but clarified that courts need only consider the second requirement (significant adaptive deficits) if, after accounting for the SEM, a defendant's IQ is “approximately 70 or less.” We recognized that a single score is not determinative and that courts must consider the SEM and thus a range of scores when evaluating a defendant's IQ test score. Reeves, 226 So. 3d at 729 n.8.

Here, the circuit court correctly noted that “McGowan has the burden of proof ․ and failed to submit any evidence that would support ․ finding that neuropsychological testing is a substitute for intelligence testing in an Atkins context.” (C. 1630.) Dr. Woods never met with McGowan, nor did he administer any tests, including an IQ test, and Dr. Woods testified that he had no opinion as to whether McGowan is intellectually disabled. Likewise, Dr. Triebel did not administer an IQ test to McGowan because “Dr. King had already given both the tests that we give for IQ testing.” (R. 189.) Thus, circuit court did not abuse its discretion by finding that McGowan “failed to meet his burden of proof” to meet the first Atkins requirement. As the circuit court found, “[t]aking into account the SEM [range], and properly relying on ‘individualized, standardized intelligence testing,’ McGowan's IQ measures no lower than 71.” (C. 1633.) Thus, his IQ scores did not fall within the range that, under current medical standards, would then call for the consideration of other evidence to decide whether there is “subaverage intellectual functioning.” McGowan's IQ score range did not necessitate the consideration of other evidence.

In sum, none of the three valid IQ scores, even after accounting for the greatest SEM range and even if based on the lowest score, “placed him within the range of significantly subaverage intellectual functioning.” (C. 1626.) The circuit court did not abuse its discretion by failing to find the neuropsychological testing and other evidence offered to be more persuasive of McGowan's intellectual functioning than his three valid IQ tests.

Furthermore, even if the “other evidence” McGowan presented at his Atkins hearing was relevant to whether McGowan had subaverage intellectual functioning, the circuit court did not abuse its discretion by finding that evidence was neither as weighty nor as credible as McGowan's valid IQ scores. McGowan's “other evidence” did not support a finding of significant adaptive deficits, as discussed below, and, for the same reason, the “other evidence” also failed to show that McGowan's actual IQ is lower than his valid IQ test scores.

B. Adaptive Deficits

Although the circuit court could have ended the Atkins inquiry after finding that McGowan had failed to meet his burden of proving the first prong -- that he suffered from significantly subaverage intellectual functioning -- based on his three valid IQ test scores, the circuit court also considered evidence of McGowan's adaptive functioning. The circuit court found that McGowan also failed to meet his burden of proving by a preponderance of the evidence that he had significant adaptive deficits, as required under the second prong of the Atkins inquiry.

In 2022, Dr. Triebel administered various neuropsychological tests and testified that McGowan's performance on all but one of those tests was “consistent with” intellectual disability. According to Dr. Triebel, McGowan presented with “global cognitive deficits” that “fit[ ] very well with intellectual disability.” (R. 202.) Dr. Triebel further opined that McGowan's school records reflecting his poor academic performance, his employment history showing “numerous minor accidents” and difficulty maintaining steady employment, and personal accounts from McGowan's life history from Grover Hicks (a former teacher and school principal), Gene McGowan (his brother), Joaquin Trevino (a former teacher), and John Davis Clay (his stepbrother) also indicated that McGowan had significant adaptive deficits.

Dr. Triebel testified that, according to the DSM-5-TR, a person with intellectual disability would have adaptive-functioning deficits in “conceptual, social, and practical domains.” (R. 175-76.) Dr. Triebel further testified that, based on her 2022 testing and review of McGowan's records, McGowan “demonstrated adaptive deficits in more than one area of adaptive functioning.” (R. 212.) Dr. Triebel specifically noted deficits in academics, safety, communication, social skills, and money management. Dr. Triebel also noted that McGowan's family members had indicated that he required supervision for complex tasks and that McGowan received a termination-of-employment letter in 1977 that indicated to her that McGowan had significant adaptive deficits regarding maintaining safety and employment. Specifically, he had seven “minor accidents” within about a nine-month period with the Okaloosa County Road Department. Dr. Triebel also noted a medical record from 1990 that showed that McGowan had been electrocuted, which she again found consistent with her finding that he had a mild intellectual disability. However, these records gave “little information about the causes of those accidents, much less whether they truly reflect adaptive deficits.” (C. 1639.) “Indeed, Dr. Triebel offered little explanation for” the minor accidents that the State asserted could have been “simple misfortune.” (C. 1639.)

McGowan also offered lay testimony about his adaptive functioning. Hicks, a former teacher, coach, and assistant principal, testified that he met McGowan “when [McGowan] was a middle school student” around 1975. (R. 38.) Hicks testified that McGowan socialized with “younger students than his chronological age,” but McGowan was 15 years old and turned 16 while in middle school. (R. 39, 41.) McGowan withdrew from the 11th grade when he was 21 years old. In addition, Hicks testified that McGowan was “bullied” and easily “manipulated.” (R. 42-43.) Hicks, however, also testified that McGowan “loved to play with the kids” and “didn't care a thing about going to class.” (R. 41.) Hicks testified that McGowan was “reading probably on a second or third grade level when he was in about fifth grade.” (R. 44.) But, Hicks acknowledged that McGowan “could do stuff that involved like a clock and money.” (R. 46.) His school records showed that McGowan was absent from school 59 days in the seventh grade and 49 days over the 2 years in which he was in the eighth grade. As Hicks testified, “[McGowan] had problems with attending school” and had no academic support at home. (R. 63, 70.) However, McGowan “was into mechanical things and not academic things.” (R. 64.) According to Hicks, McGowan “could take a weld and weld with it” and “take an electric panel and rewire that thing to where it would work.” (R. 55.) McGowan also worked sometimes after school, which Hicks acknowledged could have negatively affected his school performance. Finally, Hicks acknowledged that McGowan's school performance was not all poor. McGowan made an 80 and an 89 in his eighth and ninth grade “AG class.” McGowan also made a 76 or 77 in eighth-grade science and a C in eighth-grade history. McGowan's ninth-grade report card indicated a 94 in English and a 75 in civics class.

McGowan's brother Gene testified that their family was poor, that their father drank a lot, and that McGowan's father, mother, and older sister would spank McGowan a lot. Once, when Gene went home on military leave after his parents had separated, he found McGowan had been left at home alone for more than 3 weeks, and McGowan was only maybe 12 years old at the time. Gene discovered that McGowan had been visiting the grocery store for “bread, bologna, candy and Cokes” and “had a little bill” at the store. (R. 89, 95.) Gene also described McGowan as “slow” in school, explaining that he “didn't bring home good grades” and was “held back,” but Gene said that McGowan “just played a lot.” (R. 76, 92.) Gene also testified that McGowan “got a slight concussion” when he was about “five years old” when he fell off his father's truck. (R. 93.) Despite these issues, Gene testified that, when he returned from Vietnam, he opened a mechanic shop and that McGowan “worked as a mechanic” and was “a pretty good worker.” (R. 97-98.) Gene “supervised [McGowan] and showed him how to mount a crankshaft and transmission.” (R. 100.) Although Gene had to supervise him “putting the seals and clutch plates back together,” “[McGowan] was good on tuneups.” (R. 100.) Gene also testified that he never had a problem with McGowan changing oil and never had to remind him to close the drain plug on the oil pan. Gene also testified that McGowan first got married at 17 years old. At McGowan's capital-murder trial, Gene testified that, soon after McGowan got married, he “got out on his own.” (TR. 2240.) According to Gene, he and McGowan exchanged telephone calls and McGowan “came home from Texas” for occasional visits from the mid-1970s until 1994, and McGowan supported himself during that time with “odd jobs.” (TR. 2241-42.)

The circuit court also considered the affidavits McGowan presented from his stepbrother, John Davis Clary, and a former high-school teacher, Joaquin Trevino. Clary stated that McGowan was “slow” and struggled with “basic reading skills” and “educationally and socially” and was often bullied. (C. 1433.) According to Clary, McGowan was “easily manipulated” and often engaged in dangerous behavior, stating specifically that he “frequently climbed large trees” and once acted carelessly around a dog that bit him. (C. 1434.) Clary, who admittedly “wanted to help” McGowan, recounted one occasion when McGowan nearly sawed off a tree branch he was sitting on and other occasions when McGowan forgot to tighten the bolts after changing tires. Trevino stated that “[n]umerous students that [he] taught lacked basic reading ability, despite the fact that they were in high school,” but McGowan was in the “10 percent” of students who were “particularly academically challenged.” (C. 1439-40.) Trevino's affidavit also stated that McGowan was the only “nonfunctional and disabled student [he] ever taught.” (C. 1441.)

Dr. King rebutted the evidence McGowan presented regarding significant adaptive deficits. In 2018, Dr. King tested McGowan's adaptive functioning using the Wide Range Achievement Test, WRAT-V, and McGowan performed significantly better for Dr. King than he did for Dr. Triebel, who tested McGowan in 2022. According to Dr. King, Dr. Triebel used the WRAT-IV as one of her tests, but clinicians “are always supposed to use the most recent and current instrument available.” (R. 355-56.) Dr. King also administered the Adaptive Behavior Assessment, Third Edition (“ABAS-3”), and the Independent Living Skills (“ILS”) tests. (R. 247-48.) Although Dr. King acknowledged that the ILS test was used mostly to evaluate older adults and not for Atkins issues, he testified that it is also informative as to adaptive functioning. Specifically, he stated, the ILS test “measures practical ․ problem solving ․ activities of daily living ․ the ability to function independently.” (R. 345-46.) According to the ILS manual, “the ILS may be used with a variety of clinical populations who may be experiencing cognitive impairments.” (R. 346.) McGowan's overall ILS score was an 82, which is “in the borderline range.” (R. 348.) In short, although McGowan “would have some difficulties generally in living independently, ․ he probably could get by.” (R. 348.) Indeed, McGowan told Dr. King “that he had supported himself with odd jobs for all of his life before ․ prison. He typically worked construction, roofing, operating heavy equipment.” (R. 350.) McGowan also told Dr. King that he had received a driver's license. In addition, McGowan was “able to explain social security benefits and ․ to count out a dollar-thirty-nine from coins available to him. ․ He could explain accurately the concept of health insurance, a will and home insurance” and “how to make repairs at home ․ use a bus schedule ․ address an envelope” and locate a person's phone number. (R. 350.) “[G]enerally ․ he had pretty good answers to a lot of the practical questions that are on the Independent Living Scales.” (R. 351.) And, based on the ABAS-3, Dr. King concluded that McGowan had “good adaptive scores in home living, health and safety, self-care, self-direction, social functioning, and work.” (R. 424.)

Dr. King also reviewed McGowan's school and employment records, prison records, the competency evaluation performed by Dr. deFrancisco before McGowan's capital-murder trial, and Dr. Triebel's report. Considering all the evidence, including his own testing, and recognizing that to diagnose intellectual disability the focus should be on adaptive deficits and not strengths, Dr. King opined that McGowan did not have significant adaptive deficits and was not intellectually disabled. Rather, in Dr. King's opinion, McGowan “functions in [the] borderline range of intellectual ability, possibly the low average range.” (R. 353.)

Contrary to McGowan's arguments, the circuit court did not abuse its discretion by crediting Dr. King's testimony over Dr. Triebel's testimony. The neuropsychological tests performed by Dr. Triebel were of questionable value based on Dr. Triebel's own acknowledgment that she did not evaluate McGowan until April 2022, and McGowan had been suffering from liver damage, hepatitis, and cirrhosis, all of which both she and Dr. King acknowledged could cause brain problems and could have affected his neuropsychological test results. Notably, McGowan was already suffering from both Hepatitis C and cirrhosis of the liver in October 2018 when Dr. King administered his tests. Moreover, McGowan performed much worse on the WRAT-IV that Dr. Triebel administered in 2022 than he did on the WRAT-V when Dr. King administered it in 2018, which “would suggest strongly that some intervening event has occurred.” (R. 364.) Indeed, when Dr. King gave him the WRAT-V in 2018, McGowan performed on the average level on the digit-span test but performed poorly on that subtest for Dr. Triebel four years later. As Dr. King testified, it is “highly likely” that McGowan's health problems worsened his performance on the tests that Dr. Triebel administered in 2022. (R. 366.) Indeed, Dr. King specifically explained that “encephalopathy occurs as a result of enhanced liver disease and typically adversely affects concentration, processing speed, and verbal learning, as well as memory.” (R. 374.) Moreover, “it is not this Court's role to second-guess the circuit court's credibility determination relating to two competing psychologists’ opinions.” Carroll v. State, 300 So. 3d 51, 59 (Ala. Crim. App. 2017). Thus, the circuit court did not abuse its discretion by discounting Dr. Triebel's testimony and crediting Dr. King's testimony.

McGowan also contends that the circuit court erred by discounting the evidence presented by his lay witnesses. But, the circuit court judged Hicks's and Gene's testimony and concluded that both were entitled to “lesser weight” because “Hicks acknowledged that his memory was better in the past, and both he and Gene McGowan clearly cared for Mr. McGowan”; thus, the circuit court determined that they were subject to “bias and fading memories.” (C. 1635.) The circuit court found that the affidavits from Trevino and Clary were equally “subject to bias and fading memories,” and it attributed “less weight” to their testimony because neither was subject to cross-examination. (C. 1635.) Again, credibility is a matter for the circuit court. As the Alabama Supreme Court has explained: “ ‘When evidence is presented ore tenus, it is the duty of the trial court, which had the opportunity to observe the witnesses and their demeanors, and not the appellate court, to make credibility determinations and to weigh the evidence presented.’ ” Id. (quoting Ex parte Hayes, 70 So. 3d 1211, 1215 (Ala. 2011).

Furthermore, the circuit court's credibility and weight determinations were also bolstered by the explanations for some of McGowan's evidence that he presented as showing “significant deficits.” For example, McGowan socialized with younger children by necessity, given his age and grade level. “While there is no doubt that he received multiple failing grades, he also received good grades in multiple instances.” (C. 1636.) His poor performance could also be explained by absenteeism, other interests, and lack of support. The circuit court also noted that “McGowan was able to function on his own as a child, even when left to his own devices by his parents.” (C. 1637.) While the episode of his being left alone for weeks “spoke to deplorable parenting, it also indicated resourcefulness and adaptive functioning by McGowan.” (C. 1638.) Both Hicks and Gene testified regarding McGowan's aptitude and skills in mechanical endeavors, and, even at McGowan's trial, there was testimony regarding McGowan's working as a mechanic. McGowan also had relationships with family, friends, and various women, including two wives, a child, and his accomplice, Crane. See McGowan, 990 So. 2d at 945-47. Although McGowan presented some evidence of workplace accidents, he provided “little information about ․ whether they truly reflect adaptive deficits.” (C. 1639.) And, “[a]s Dr. King testified, McGowan's trouble maintaining employment could be explained by his drug use and arrest history.” (C. 1639 (citing R. 368-70).) In addition, contrary to the affidavit from his stepbrother, Clary, his brother Gene testified that McGowan was a “pretty good worker” and could perform various tasks well. Likewise, Hicks testified that McGowan could weld and even rewire an electric panel as early as middle school. Moreover, the circuit court noted that “McGowan's ability to repeatedly engage in criminal behavior refutes the notion that he has significant adaptive deficits.” (C. 1640.) Finally, the circuit court recognized that “McGowan's ability to plan and carry out premeditated murders exhibited adaptive strengths and refutes the notion that he has significant adaptive deficits.” (C. 1641.) See also Atkins, 536 U.S. at 318 (resting its decision on the “abundant evidence that [the intellectually disabled] often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders,” and that these ‘deficiencies ․ diminish their personal culpability.’ ”) (emphasis added; citations and footnote omitted)).

In sum, considering the conflicting evidence, the circuit court did not abuse its discretion by finding that McGowan “failed to offer evidence of such compelling deficits that this Court would be warranted in finding him to be intellectually disabled, even if he had not also failed to present evidence of significantly subaverage intellectual functioning.” (C. 1642.)

Although McGowan repeatedly faults the circuit court for considering his adaptive strengths, he points to no case that requires a court to consider only evidence of adaptive deficits. Indeed, we have held that, “[a]lthough standardized tests for adaptive functioning are certainly useful in assessing a person's adaptive functioning, a court should assess such test scores in light of the circumstances of each case and in light of all other relevant evidence regarding adaptive functioning, including the person's actions at the time of the crime.” Reeves, 226 So. 3d at 742. Moreover, the United States Supreme Court has held that courts err by overemphasizing strengths not by considering strengths or, in other words, by considering evidence presented to rebut the evidence of deficits.

Here, the circuit court did not overemphasize McGowan's adaptive strengths but, rather, properly resolved the conflicting opinions of the two experts who tested McGowan's adaptive functioning in light of other relevant evidence regarding McGowan's adaptive functioning, including his skills (automobile mechanics, welding, electrical work, construction) and resourcefulness (supporting himself and even assuming the sole care of himself for nearly a month as a young child), as well as his calculated actions surrounding the murders, which the evidence indicated was premeditated weeks before by McGowan -- who initiated and led the brutal crime spree and who attempted to hide and destroy evidence. In fact, McGowan concocted multiple stories during his crime spree to obtain the murder weapon of choice on the night of the murders, to get access to his victims, and to take them by surprise and bludgeon them to death with a hammer to get their money. McGowan collected and split the money with his accomplice after each murder and attempted to dispose of the evidence.⁹ McGowan also reacted coolly when stopped by the police after the brutal murders, such that the drugs in his car and the evidence of his crime spree were not discovered at that time. Apparently, McGowan did not even arouse suspicion but reacted calmly as he was followed to his wife's place of employment and lied about his activities with Crane, his accomplice, to get his wife and the police officer to let him leave again so that he could get Crane and flee to another state to evade prosecution. Indeed, McGowan was arrested only after “Crane persuaded [him] to stop at a motel” where she called emergency 911. McGowan, 990 So. 2d at 944. See also Reeves, 226 So. 3d at 743 (“[T]he court appropriately looked at evidence regarding Reese's adaptive functioning other than the expert testimony -- such as Reeve's technical abilities in brick masonry, welding and automobile mechanics; Reeves's ability to work construction ․ [and] Reeves's cold and calculated actions surrounding the murder, including planning the robbery with his codefendants, hiding incriminating evidence after he had shot the victim, splitting the proceeds of the robbery with his codefendants.”). Cf. Ex parte Lane, 286 So. 3d at 68 (“There was no evidence of detailed planning, thoughtful premeditation, or sophisticated advanced preparation. The means Lane employed to commit the crime are not sufficient to refute the evidence that he has the requisite deficits in at least two adaptive-skill areas and is intellectually disabled.”). “There is ample evidence in the record to support the circuit court's finding that [McGowan] did not suffer from significant deficits ․ and we will not disturb the circuit court's resolution of the conflicting evidence.” Reeves, 226 So. 3d at 743.

“Rather than ‘overemphasizing perceived adaptive strengths,’ ․ the [circuit] court here, in its detailed analysis of [the adaptive-functioning] prong, properly considered the findings of both experts as well as all of the other evidence,” including evidence that rebutted McGowan's proffered evidence of adaptive deficits, “before concluding that [McGowan] failed to meet this prong.” Haliburton, 331 So. 3d at 651 (citation omitted). Thus, the circuit court did not abuse its discretion.

C. Manifestation Before, During, and After Developmental Period

To prove that he was intellectually disabled and ineligible for execution, McGowan was also required to prove by a preponderance of the evidence that he was experiencing intellectual disability during the developmental period. Because we have held that the circuit court did not abuse its discretion by finding that McGowan was not intellectually disabled under either of the first two prongs of the three-pronged Atkins test, we need not examine this third prong. See, e.g., Ex parte Smith, 213 So. 3d 214, 225-26 (Ala. 2003).

In sum, McGowan failed to prove by a preponderance of the evidence that he was intellectually disabled and ineligible for the death penalty. Thus, the circuit court did not abuse its discretion by denying McGowan's Atkins claim.

D. Adoption of the State's Proposed Order

McGowan last contends that the circuit court erred by “improperly adopt[ing] the State's proposed order nearly verbatim.” (McGowan's brief, p. 71 (emphasis added).)

“ ‘Alabama courts have consistently held that even when a trial court adopts verbatim a party's proposed order, the findings of fact and conclusions of law are those of the trial court and they may be reversed only if they are clearly erroneous.’ ” Reeves, 226 So. 3d at 723 (quoting McGahee v. State, 885 So. 2d 191, 229-30 (Ala. Crim. App. 2003)). “ ‘While the practice of adopting the state's proposed findings and conclusions is subject to criticism, the general rule is that even when the court adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.’ ” Id. (quoting Bell v. State, 593 So. 2d 123, 126 (Ala. Crim. App. 1991)). McGowan does not point to any aspect of the circuit court's order that is “clearly erroneous.” The circuit court's order does not contain any statement that is of a “patently erroneous nature [which would] undermine any confidence that the trial court's findings of fact and conclusions of law are the product of the trial judge's independent judgment.” Ex parte Ingram, 51 So. 3d 1119, 1125 (Ala. 2010). Moreover, McGowan acknowledges that “the circuit court did add a brief introduction ․ and multiple pages of block quotations ․ from an appellate decision in Mr. McGowan's underlying criminal case.” (McGowan's brief, p. 72.)

In sum, there is nothing in the record, which this Court has thoroughly reviewed, that indicates that the circuit court's findings were not its own. Furthermore, “the circuit court here adopted a portion of the State's proposed order, not a portion of the State's answer.” Reeves, 226 So. 3d at 724. “Therefore, we find no error on the part of the circuit court in adopting [nearly] verbatim ․ the State's proposed order addressing [McGowan's] intellectual-disability claim.” Id. at 724-25.

Conclusion

For these reasons, McGowan is due no relief on any of his postconviction claims, and the judgment of the circuit court, summarily dismissing the non-Atkins claims McGowan raised in his postconviction petition and denying McGowan's Atkins claim after an evidentiary hearing, is affirmed.

AFFIRMED.

FOOTNOTES

1.   “C,” “R,” and “SR” refer to the clerk's record, the reporter's transcript, and the supplemental record in this case. “TC,” “TR,” and “STR” refer to the clerk's record, the reporter's transcript, and the supplemental record from McGowan's trial.

2.   The opinion in McGowan, 990 So. 3d at 943, states that McGowan picked up Crane on July 18, 1999, but the record, including Crane's testimony, clearly reflects that this event, and the subsequent capital murders, occurred in 1994.

3.   “McGowan was charged with capital murder for the death of Harper. He was tried separately for that offense.” Id. at 944 n.2. On direct appeal, this Court held that the evidence that McGowan killed Harper was admissible in his capital-murder trial for murdering the Johnsons because all of the offenses were committed during one continual crime spree. Id. at 960-62.

4.   This Court will hereinafter refer to McGowan's “amended petition” as the “petition” because it is the operative pleading.

5.   Juror M.G. is not to be confused with the previously named venireperson M.G.

6.   At the penalty phase, Dr. deFrancisco, who testified for the defense regarding McGowan's borderline intellectual functioning and emotional disturbance from using large amounts of crack cocaine, testified that he had conducted “well over a hundred forensic examinations to determine competency to stand trial, mental state at the time of defense, competency to be sentenced, competency to waive Miranda rights.” (TR. 2128-29.) Dr. deFrancisco also testified that he was previously ordered by the trial court to evaluate McGowan, which he did in April 1996. (TR. 2131.)

7.   The Court noted that it was ending its previous use of the term “mental retardation” and employing the term “intellectual disability,” as “used in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders, one of the basic texts used by psychiatrists and other experts. The manual is often referred to by its initials ‘DSM,’ followed by its edition number, e.g., ‘DSM-5.’ ” Id. at 704-05 (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013)).

8.   The Stanford-Binet and WAIS-IV both had test-specific competence intervals that required a lesser SEM than the standard five points, such that the Stanford-Binet test-specific SEM range was between 73 and 81 at 95% competency and the WAIS-IV test-specific SEM range was between 78 and 86 at 95% competency.

9.   See McGowan, 990 So. 2d at 944 (“McGowan ․ handed Crane a wallet”); id. at 944 (“McGowan cut the legs off of the pants he was wearing and threw away the bloody shirt, the legs of his bloody pants, Harper's wallet, the towel from Harper's house, and the cloth Crane had used to hold the hammer as she threw it from the car window); id. at 944 (McGowan “handed [Crane] [Mr. Johnson's] billfold and instructed her to go through its contents”); id. at 944 (McGowan got “a blue and green plaid shirt” from Frank Porter's house).

COLE, Judge.

Windom, P.J., and Minor, J., concur. Kellum, J., concurs in the result. Anderson, J., recuses himself.