Walker v. State

194 So.3d 253

James Earl WALKER

v.STATE of Alabama.

CR–11–0241.

Court of Criminal Appeals of Alabama.

Feb. 6, 2015.

Rehearing Denied July 2, 2015.

Certiorari Denied Oct. 23, 2015

Alabama Supreme Court 1141097.

Erin Marie Eckhoff, Chicago, Illinois (withdrew 4/14/2014); and David B. Pitofsky (withdrew 7/11/2013), Valerie A. Haggans, William J. Harrington, and Meghan K. Spillane, New York, New York, for appellant.

Luther Strange, atty. gen., and Thomas Govan, asst. atty. gen., for appellee.

WELCH, Judge.

James Earl Walker, an inmate on death row at Holman Correctional Facility, appeals the Houston Circuit Court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In August 2003, Walker was convicted of murdering 87–year–old Bessie Lee Thweatt during the course of a burglary, an offense defined as capital by § 13A–5–40(a)(4), Ala.Code 1975. The jury unanimously recommended that Walker be sentenced to death. The circuit court followed the jury's recommendation and sentenced Walker to death. On direct appeal, this Court initially remanded the case to the circuit court for that court to correct its sentencing order. See Walker v. State, 932 So.2d 140 (Ala.Crim.App.2004). On return to remand, we affirmed Walker's conviction and sentence of death. See Walker v. State, 932 So.2d at 160 (opinion on return to remand). The Alabama Supreme Court affirmed this Court's judgment. See Ex parte Walker, 972 So.2d 737 (Ala.2007). On May 21, 2007, this Court issued a certificate of judgment, thereby making our judgment as to Walker's direct appeal final. See Rule 41, Ala. R.App. P.

In May 2008, Walker filed a timely petition for postconviction relief. Walker filed amended petitions in July 2008 (C. 165), February 2009 (C. 752), December 2009 (C. 1326), and March 2010 (C. 1587). In December 2008 and June 2009, the circuit court summarily dismissed some of Walker's claims. In January 2010, an evidentiary hearing was held on the remaining claims. In August 2011, the circuit court issued a 34–page order denying Walker's postconviction petition. Walker filed a timely notice of appeal to this Court.

In its order denying Walker's postconviction petition, the circuit court set out the following facts surrounding the murder:

“The victim, Bessie Lee Thweatt, was at home on the night of January 5, 2000. The 87–year–old woman lived in the same house in Houston County, Alabama, for the past 67 years. She was petite in stature and weighed approximately 112 pounds. She was known to keep money inside the home and her vehicle. On that fateful night, [Rex] Beckworth and stepbrother, James Earl Walker appeared at the Thweatt home. The outside carport light was broken and the phone lines to the house were cut. The assailant broke the back window and entered the home. Mrs. Thweatt's blood soaked body was later discovered inside her home, which had been ransacked. She was pronounced dead at the scene.

“After the murder, Walker and Beckworth went to Motel 6 where Walker's sister worked. Beckworth was driving Walker's vehicle. She (Walker's sister) rented a room to them in her name at Walker's request. She saw a .22 caliber rifle in the trunk. A hunter found a .22 caliber semi-automatic rifle in the creek at Power Dam Road. He called the Houston County Sheriff's department and helped retrieve the gun from the water. A state forensic firearm examiner determined that bullet fragments taken from the Thweatt home were .22 caliber. However, the bullets were damaged and the firearm expert could not form an opinion as to a match, although he indicated they were similar. A .22 caliber casing was found at the Thweatt home. The firearm examiner determined that this casing was fired from the .22 caliber rifle pulled from the creek.

“Houston County Sheriffs department investigators focused their attention on Walker and Beckworth. They were known to be living in Etowah County, Alabama. Ron Jones, an officer with the Hokes Bluff police department, knew both Defendants. Providing assistance to the Houston County Sheriffs department, Officer Jones went to [Walker's] mobile home in June 2000. Defendant Beckworth ran out the door and Defendant Walker hid underneath the love seat in a fetal position. Officer Jones took Walker into custody.

“Once Walker was returned to Houston County from Etowah County he took investigators to the scene of the crime. On video he explained how the two approached the house and that Beckworth broke the rear window and entered the home through that window. He claimed that he never entered the home and later ran from the area when he heard a gun shot. However, a jail inmate, Tim Byrd, testified that Walker admitted to him that he (Walker) had done the killing.

Byrd stated that Walker wanted to clear his conscience.

“Dr. Alfredo Parades, a forensic pathologist performed the autopsy on Mrs. Thweatt. Dr. Parades found that the victim was shot at close range due to gunpowder residue on her face. He also noted there were numerous lacerations on the face and three fractures to the cheek. There were a total of nine injuries from blunt force trauma, which included two fractures of the skull. Dr. Parades opined that the victim was alive during the blunt force trauma injuries and these injuries preceded the gunshot wound to the head. The gunshot wound caused the victim's death. Dr. Parades also testified that Mrs. Thweatt suffered pain.

“The Defense produced four witnesses[;] perhaps the most important was Mark Peacock who was the victim's grandson. He testified that he knew co-defendant Beckworth from his days as an inmate at Clio. They were incarcerated at the same place. There were discussions between them about Mrs. Thweatt keeping money at her home.”

(C. 2276–78.)

Standards of Review

Walker appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P. According to Rule 32.3, Ala. R.Crim. P., “[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.”

“Though we reviewed the claims on [Walker's] direct appeal for plain error, the plain-error standard of review does not apply to a postconviction petition attacking a capital-murder conviction and death sentence. See Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008) ; Waldrop v. State, 987 So.2d 1186 (Ala.Crim.App.2007) ; Hall v. State, 979 So.2d 125 (Ala.Crim.App.2007) ; Gaddy v. State, 952 So.2d 1149 (Ala.Crim.App.2006). ‘In addition, “[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). When reviewing the circuit court's rulings on the claims raised in [Walker's] postconviction petition, we apply an abuse-of-discretion standard. Gaddy, 952 So.2d at 1154.”

Ray v. State, 80 So.3d 965, 971 (Ala.Crim.App.2011). “[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, [this Court's] review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “[T]his Court may affirm the judgment of the circuit court for any reason, even if not for the reason stated by the circuit court.” Acra v. State, 105 So.3d 460, 464 (Ala.Crim.App.2012).

Many of the claims raised by Walker concern allegations that his counsel's performance at his capital-murder trial was ineffective. “The right to counsel requires more than the presence of a lawyer; it necessarily requires the right to effective assistance. However, the right does not provide a right to errorless counsel, but rather to objectively reasonable representation.” Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App.2011). “A defense attorney is not ineffective solely because his client is sentenced to death.” Payne v. State, 791 So.2d 383, 405 (Ala.Crim.App.1999).

The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that to prevail on a claim of ineffective assistance of counsel a petitioner must establish: (1) that counsel's performance was deficient and (2) that the petitioner was prejudiced by the deficient performance.

“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 (citations omitted).

“The purpose of ineffectiveness review is not to grade counsel's performance. See Strickland [v. Washington ], 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, 104 S.Ct. at

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