James William McGowan v. State of Alabama

Rel: November 6, 2026 Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is published in Southern Reporter. Alabama Court of Criminal Appeals OCTOBER TERM, 2026-2027 _________________________ CR-2024-0751 _________________________ James William McGowan v. State of Alabama Appeal from Conecuh Circuit Court (CC-94-64.60) COLE, Judge. 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 CR-2024-0751 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), 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 CR-2024-0751 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, 3 CR-2024-0751 [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 2The 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. 4 CR-2024-0751 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 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. 5 CR-2024-0751 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 6 CR-2024-0751 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. 7 CR-2024-0751 "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 8 CR-2024-0751 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. 9 CR-2024-0751 "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 10 CR-2024-0751 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 11 CR-2024-0751 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 12 CR-2024-0751 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: 4This Court will hereinafter refer to McGowan's "amended petition" as the "petition" because it is the operative pleading. 13 CR-2024-0751 "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). 14 CR-2024-0751 "[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. 15 CR-2024-0751 " ' "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 16 CR-2024-0751 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 ___. 17 CR-2024-0751 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 18 CR-2024-0751 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 19 CR-2024-0751 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 non- Atkins, 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. 20 CR-2024-0751 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. 21 CR-2024-0751 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 22 CR-2024-0751 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 23 CR-2024-0751 U.S. at 693,] 104 S. Ct. at 2067. Different lawyers have differen