00Z393 Holman CF (Death Row) Inmate: JONES, AARON
DOC#: 00Z393
Race: Black
Gender: Male
Date of Birth: 4/23/1952
Location: Holman CF (Death Row)
Assigned to Death Row: 8/18/1979
County of Conviction: Blount County

Birmingham News

"Jones put to death for '78 Oneonta murders," by Stan Diel. (Friday, May 04, 2007)

ATMORE - Aaron Jones was put to death Thursday by lethal injection for the 1978 double murder of a couple on their farm near Oneonta.

The 55-year-old Jones, who was pronounced dead at 6:29 p.m., had been the third-longest-serving inmate on Alabama's Death Row. His accomplice in the murders, Arthur Lee Giles, remains on Death Row at Holman Correctional Facility.

Jones had no final words and fixed his eyes on the ceiling of the execution chamber as a lethal cocktail of chemicals was delivered through an IV tube into his left arm just after 6 p.m. Prison Chaplain Chris Summers kneeled to pray, and placed his hand on the inmate's left hand.

In the witness room separated by a glass window, the four adult children of the slain victims watched silently. "I feel like they ought to have got the electric chair," said Larry Nelson, one of the children. "If we had a guillotine or gallows we would have a lot less crying. I hope and pray things will get better."

For his last meal Jones requested black-eyed peas, pepper steak and an orange-flavored drink. Earlier in the day he had a cheeseburger and a Pepsi from a prison vending machine.

In the hours before his execution he was visited by his two sisters, Glenn Johnson and Phyllis Favors, and his brother, Henry Irby. Irby and a representative of Kairos Prison Ministries witnessed the execution. Jones left all of his belongings, including a Magnavox television, Timex watch, Sony radio and headphones, tobacco, a Bible and a check for $130.85, to another brother, Johnny Wright.

Jones and Giles were convicted for the Nov. 10, 1978, attack in which Willene and Carl Nelson were shot and stabbed to death in the pre-dawn hours. Three children, ages 10, 13 and 21, were critically wounded, but survived. The children's 85-year-old grandmother also survived.

In testimony at Jones' trial, the survivors said Giles had worked for Carl Nelson picking vegetables and hauling watermelons to a farmers market. Jones and Giles had been drinking beer and rum the night of the murders, and entered the Nelsons' home intending to rob them, according to testimony.

The oldest of the couple's children, Tony, who was 21 at the time, testified that he was awakened just after 3 a.m. when Giles turned on the light in the bedroom Tony shared with his 10-year-old brother, Charlie. Carl Nelson confronted Giles and told him to leave, but minutes later Tony Nelson found Giles at the house's back door, and Giles shot him twice. Jones and Giles then made their way through the house, shooting and stabbing its occupants, Tony Nelson testified.

After a wounded Tony got to his feet and made his way to his parents' bedroom, he found Charlie and 13-year-old Brenda, stabbed, shot and bloody, but alive at the foot of their parents' bed. "My momma and daddy's dead," Brenda said, according to Tony Nelson's testimony.

Jones and Giles were tried separately, with Jones' trial held in the spring and summer of 1979.

27 years on Death Row:
While the jury took just an hour and 45 minutes to declare him guilty, Jones has been on Death Row for 27 years.

Jones' attorney had tried unsuccessfully to block the execution, most recently arguing before the 11th Circuit Court of Appeals that lethal injection poses too high a risk of extreme pain.

Alabama Attorney General Troy King asked the court not to block the execution, arguing that Jones was too late to challenge the use of lethal injection. He could have made that argument years ago without requesting a stay, King said.

Reuters News

"Alabama, Indiana execute death row inmates," by Peggy Gargis. (May 4, 2007 2:41AM EDT)

BIRMINGHAM, Alabama (Reuters) - The U.S. state of Alabama executed a death row inmate, Aaron Lee Jones, by lethal injection Thursday, the state's first execution of the year and its 36th since capital punishment was reinstated in 1976.

Jones, 55, was convicted in 1979 of the November 10, 1978, murders of Carl and Willene Nelson in Blount County, northeast of Birmingham, during a home robbery. Jones and an accomplice also shot and stabbed the couple's three children and the children's grandmother. The children and the grandmother survived the attacks.

Alabama Department of Corrections spokesman Brian Corbett said Jones died at 7:29 EDT (1129 GMT), and that he had a pepper steak and black-eyed peas as a last meal. "He had no last words," Corbett said, adding the lethal injection had been carried out in a routine manner from the authorities' point of view. http://deathpenalty3.proboards103.com/index.cgi?board=ex2007&action=display&thread=1178028722&page=1

The Daily Report

"Appeals panel denies Jones' stay of execution." (Associatted Press)

A 3-judge federal panel Friday denied a stay of execution for Alabama death row inmate Aaron Jones, who is scheduled to die May 3 by lethal injection for 2 killings more than 28 years ago. His attorneys had asked the U.S. 11th Circuit Court of Appeals in Atlanta to block the execution until a lower court hears another prisoner's challenge to lethal injection.

But the 11th Circuit panel refused: "The state and the surviving victims have waited long enough for some closure to these heinous crimes. We will not interfere with the state's strong interest in enforcing its judgment in this case." An attorney for Jones said an appeal would be filed with the U.S. Supreme Court.

Jones, 54, one of the longest-serving death row inmates in Alabama, is scheduled to die by lethal injection at 6 p.m. (CDT) Thursday at Holman Prison for the gruesome slayings of a Blount County couple and attacks on other family members during a home robbery in 1978.

The 11th Circuit panel agreed with the state's attorneys' argument that Jones had waited too long to challenge the constitutionality of lethal injection, saying Jones could have done that years ago when the state adopted that type of execution. By waiting until November 2006 to challenge the state's lethal injection procedure, Jones' purpose was to delay the execution, not fight the method, the court concluded.

Opposing any execution delay, state prosecutors said that while Jones and another death row inmate have separate appeals with identical lethal injection claims, each case must be settled on its own merits and Jones should be executed. The appeals panel agreed, saying the "mere possibility of a trial date in another case does not affect the balancing of the equities in this case."

Jones, who lived in Birmingham, has filed many appeals over the last 27 years, the latest challenging lethal injection as a method of execution. He was convicted of capital murder and sentenced to death -- 1st in 1979 and then in a retrial in 1982.

Jones' pro-bono attorney, Heather K. McDevitt of the New York, had argued in a brief before the 11th Circuit that Jones should be granted a stay of execution until a Montgomery federal judge hears a challenge to lethal injection from another death row inmate, Darrell Grayson, who has a July 26 execution date. Attorneys from the Atlanta-based Southern Center for Human Rights, representing Grayson, are expected to request a stay of execution on Monday.

Alabama Attorney General Troy King, in a brief filed Friday in the 11th Circuit, said there's no guarantee Grayson will be given a trial on the constitutionality of lethal injection.

U.S. District Judge Keith Watkins has indicated a June 26 trial is a possibility and gave attorneys a timetable to submit briefs. The constitutionality of Alabama's method of execution by lethal injection has never been decided by the courts. A half-dozen inmates have filed lethal injection challenges in the Montgomery federal court. State's attorneys say each claim is "virtually identical," and they expect more will be filed as the clock ticks down toward an execution date.

Jones' attorney told the 11th Circuit that a stay of execution in his case should be granted until there's a ruling on Grayson's challenge to Alabama's execution procedures. McDevitt said the state "can point to no legitimate interest in rushing" to execute Jones next week as opposed to 2 months from now when the matter is decided in the same court in which Jones' challenge was pending. "To proceed otherwise is unjust and tends to create an appearance that the system is arbitrary and capricious in matters of such grave importance," McDevitt argues.

She said at least eight states have recently suspended execution by lethal injection over concerns about the execution process, saying it has come "under heavy scrutiny in the past year and is a matter of serious, national concern."

In a response, the attorney general's brief says death row inmates "will certainly argue any doctrine available to prevent re-litigation of the same issues, but every death row inmate will inevitably claim that his case is somehow 'different' and that he is entitled to a trial."

However, the state argues, the 11th Circuit has denied stays of execution when inmates could have brought claims in time to permit full consideration without any need to stay their executions. In Jones' case, U.S. District Judge Myron Thompson in Montgomery earlier denied a bid to block the execution. Thompson said Jones' challenge "is dilatory."

Jones and cohort Arthur Lee Giles, also on death row, shot and stabbed 3 children, their parents and their grandmother in rural Blount County, a farming area northeast of Birmingham. The parents, Willene and Carl Nelson, died as a result of injuries in the Nov. 10, 1978 attack.

Jones, and Giles, 47, are among the longest-serving inmates on Alabama's death row. Only 2 out of the 199 inmates on death row have been there longer, according to Department of Corrections records.

Florida Times-Union

"Alabama death row inmate Aaron Jones executed," by Garry Mitchell. (AP May 3, 2007)

ATMORE, Ala. - Aaron Lee Jones was executed Thursday by lethal injection for the gruesome 1978 slaying of a Blount County couple, a crime that made him one of the state's longest death row residents.

Jones, 55, showed no emotion and had no final words, never looking toward the witnesses that included his victims' four adult children. Jones kept his eyes fixed on the ceiling and lifted his head only once when the deadly drugs entered his body. Prison chaplain Chris Summers knelt beside Jones, placed his hand on the inmate's left hand and prayed. Jones was pronounced dead at 6:29 p.m.

David Nelson, the couple's son who still lives in Blount County, said Jones should have died in the electric chair. "He don't deserve no more than what he dished out," Nelson said at a post-execution news conference with two other brothers, Larry Nelson and Charlie Nelson. The three witnessed the execution with their sister, Brenda Albright. Another brother, Tony Nelson, who was in the house during the murders and survived the attack, is deceased.

Billy Irwin, of Blountsville, who was a sheriff's investigator at the time of the slayings, said he and the Nelsons had been watching the case for 28 years. He said, "Justice has finally been carried out."

The state Supreme Court on Wednesday refused Jones' request to vacate the execution date. His appeal to the U.S. Supreme Court was rejected Thursday afternoon. Jones, of Birmingham, has filed many appeals over the last 27 years, the latest challenging lethal injection as a method of execution.

He was convicted of capital murder in the deaths of Willene and Carl Nelson, and sentenced to death - first in 1979 and then in a retrial in 1982. The Nelsons, who lived in the Rosa community of Blount County, a farming area northeast of Birmingham, were attacked about 3:30 a.m.

Besides the murders, Jones and cohort Arthur Lee Giles, also on death row, shot and stabbed the Nelsons' three children and their grandmother. They survived the attacks.

Jones left his few possessions to his brother Johnny Wright. Another brother, Henry Irby, witnessed the execution. Jones' final visitors included his two lawyers, two sisters and a brother. His last meal request was for pepper steak, black-eyed peas and an orange drink.

Jones' attorneys had appealed a decision by the 11th U.S. Circuit Court of Appeals in Atlanta that denied a stay of execution until a lower court could hear another Alabama prisoner's constitutional challenge to use of lethal injection.

A three-judge 11th Circuit panel ruled that Jones' lethal-injection challenge should have been filed much sooner and his purpose in delaying the filing was to postpone his execution. "The state and the surviving victims have waited long enough for some closure to these heinous crimes," the 11th Circuit stated. "We will not interfere with the state's strong interest in enforcing its judgment in this case."

A hearing on a separate challenge to the state's lethal injection procedures is to be held in June, and attorneys for Jones had argued his execution should be stayed pending the outcome of that proceeding. After the execution, Jones' pro-bono attorney, Heather K. McDevitt, said, "What has just happened in Atmore will be a gross injustice if Alabama's lethal injection protocol is found to be unconstitutional in less than two months, as we believe it should."

Department of Corrections spokesman Brian Corbett said Jones visited with friends and religious volunteers on Monday, had no visitation Tuesday, but met with friends and family again Wednesday. Corbett described Jones as "very calm." He said Jones requested to send a Bible to his mother, but made no other requests.

In a confession, Jones admitted that he and Giles, after drinking rum and beer, went to the home to rob the Nelsons, although they never found any money.

Jones, and Giles, now 47, had been on Alabama's death row longer than all but two of the 199 inmates facing execution in the state, according to Department of Corrections records.

On the Net:
List of death row inmates at: http://www.doc.alabama.gov/deathrow.asp

Al.Com

ProDeathPenalty.Com

National Coalition to Abolish the Death Penalty

Aaron Lee Jones, May 3, 2007 Alabama
Do Not Execute Aaron Lee Jones!

On May 3, Alabama is set to execute Aaron Lee Jones for the November 1978 murders of Carl and Willene Nelson.

The state of Alabama should not execute Aaron Lee Jones for his role in this crime. Executing Jones would violate the right to life as declared in the Universal Declaration of Human Rights and would constitute the ultimate cruel, inhuman and degrading punishment. Furthermore, Jones claims ineffective assistance of counsel and has tried to challenge the state’s lethal injection protocols.

Please write to Gov. Bob Riley on behalf of Aaron Lee Jones!

Wikipedia

The following individuals have been executed by the State of Alabama at the Holman Correctional Facility near Atmore since 1943:

Inmate Date Method Victim

1 John Louis Evans 22 April 1983 electrocution Edward Nassar.
2 Arthur Lee Jones 21 March 1986 electrocution William Hosea Waymon.
3 Wayne Ritter 28 August 1987 electrocution Edward Nassar.
4 Michael Lindsey 26 May 1989 electrocution Rosemary Zimlich Rutland.
5 Horace Dunkins 14 July 1989 electrocution Lynn McCurry.
6 Herbert Richardson 18 August 1989 electrocution Rena Mae Callins.
7 Arthur Julius 17 November 1989 electrocution Susie Bell Sanders.
8 Wallace Thomas 13 July 1990 electrocution Quenette Shehane.
9 Larry Heath 30 March 1992 electrocution Rebecca Heam.
10 Cornelius Singleton 20 November 1992 electrocution Ann Hogan.
11 Willie Clisby 28 April 1995 electrocution Fletcher Handley.
12 Varnell Weeks 12 May 1995 electrocution Mark Batts.
13 Edward Horsley, Jr. 16 February 1996 electrocution Naomi Rolon.
14 Billy Wayne Waldrop 10 January 1997 electrocution Thurman Donahoo.
15 Walter Hill 2 May 1997 electrocution Willie Mae Hammock, John Tatum, and Lois Tatum.
16 Henry Hays 6 June 1997 electrocution Michael Donald.
17 Stephen Allen Thompson 8 May 1998 electrocution Robin Balarzs.
18 Brian K. Baldwin 18 June 1999 electrocution Naomi Rolon.
19 Victor Kennedy 6 August 1999 electrocution Annie Laura Orr.
20 David Ray Duren 7 January 2000 electrocution Kathleen Bedsole.
21 Freddie Lee Wright 3 March 2000 electrocution Warren Green and Lois Green.
22 Robert Lee Tarver, Jr. 14 April 2000 electrocution Hugh Sims Kite.
23 Pernell Ford 2 June 2002 electrocution Willie C. Griffith and Linda Gail Griffith.
24 Lynda Lyon Block 10 May 2002 electrocution Opelika police Sergeant Roger Lamar Motley.
25 Anthony Keith Johnson 12 December 2002 lethal injection Kenneth Cantrell.
26 Michael Eugene Thompson 13 March 2003 lethal injection Maisie Carlene Gray.
27 Gary Leon Brown 24 April 2003 lethal injection Jack David McGraw.
28 Tommy Jerry Fortenberry 7 August 2003 lethal injection Ronald Michael Guest, Wilbut T. Nelson, Robert William Payne, and Nancy Payne.
29 James Barney Hubbard August 5, 2004 lethal injection Lillian Montgomery.
30 David Kevin Hocker 30 September 2004 lethal injection Jerry Wayne Robinson.
31 Mario Giovanni Centobie 28 April 2005 lethal injection Moody police officer Keith Turner.
32 Jerry Paul Henderson 2 June 2005 lethal injection Jerry Haney in Talladega and for accepting $3,000 from Haney's wife for the killing.
33 George Everett Sibley, Jr. (common-law husband of Lynda Lyon Block) 4 August 2005 lethal injection Opelika police Sergeant Roger Lamar Motley.
34 John W. Peoples, Jr. September 22, 2005 lethal injection Paul Franklin, Judy Franklin, and Paul Franklin, Jr.
35 Larry Eugene Hutcherson October 26, 2006 lethal injection Irma Thelma Gray
36 Aaron Lee Jones May 3, 2007 lethal injection Carl Nelson and Willene Nelson

Jones v. State, 520 So.2d 543 (Ala.Cr.App. 1984) (Direct Appeal).

After remand, 403 So.2d 1, defendant was convicted in the Circuit Court, Blount County, Carl D. NeSmith, J., of capital murder, sentenced to death by electrocution, and he appealed. The Court of Criminal Appeals, Harris, J., held that: (1) trial court did not summarily deny defendant's motion for change of venue; (2) court's denial of such motion was not an abuse of discretion; (3) defendant was not harmed by court's refusal to grant his challenge for cause to one prospective juror; (4) any defect in State's proof of defendant's prior convictions was harmless; (5) State's proof of prior convictions, through certified copies of trial docket sheets evidencing such convictions, was proper; but (6) court's order concluding that aggravating circumstances outweighed mitigating circumstances was insufficient. Following remand and compliance by the Circuit Court with instructions to extend original sentencing order, the Court of Criminal Appeals held that penalty of death was properly imposed upon conviction of defendant for capital murder, since there were no errors in the sentencing procedure adversely affecting defendant's rights, defendant, who had previous felony conviction, had actively participated in especially heinous and cruel murders, and the penalty was not excessive or disproportionate to penalty imposed in similar cases. Conviction and penalty affirmed. Judgment affirmed, Ala., 520 So.2d 553.

HARRIS, Judge.
The instant appeal is from Aaron Jones's second trial for capital murder, pursuant to § 13-11-2(a)(10), Code of Alabama 1975, for his participation in the double murder of Willene and Carl Nelson, both of whom died from a combination of gunshot wounds and multiple knife wounds inflicted during the early morning hours of November 10, 1978. Jones's first trial resulted in a conviction for capital murder and a sentence of death by electrocution. The judgment of conviction was reversed, however, and the case remanded for a new trial on the authority of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), on remand, Beck v. State, 396 So.2d 645 (Ala.1980), and Ritter v. State, 403 So.2d 154 (Ala.1981), after remand, 403 So.2d 158 (Ala.Cr.App.). See, Jones v. State, 403 So.2d 1 (Ala.Cr.App.1981).

Jones's second trial for the instant offense was conducted in accordance with the bifurcated procedures outlined in Beck v. State, 396 So.2d 645 (Ala.1980). The jury found Aaron Jones, the appellant herein, guilty of the capital murder charged in the indictment and, after a separate sentencing hearing, fixed his punishment at death by electrocution. The trial court held a separate sentencing hearing on aggravating and mitigating circumstances and, after concluding that the aggravating circumstances outweighed the mitigating circumstances, sentenced the appellant to death by electrocution. It is from this second conviction and sentence that the appellant now prosecutes this appeal.

Tony Nelson testified that on the morning of November 10, 1978, he was sleeping with his ten-year-old brother, Charlie, in one of the bedrooms of his parents' home in the Rosa community in rural Blount County, Alabama. His thirteen-year-old sister, Brenda, was sleeping with their parents, Willene and Carl Nelson, in another bedroom. Tony's grandmother was sleeping by herself in a third bedroom of the home.

At 3:27 a.m. Tony was awakened by a disturbance inside the home. When the light in his bedroom was turned on, he saw Arthur Lee Giles, a former employee of his father, standing in the doorway of Tony's bedroom. Tony's father appeared and asked Giles to leave. Tony got out of bed and followed Giles to make sure Giles left as directed. As Tony stepped out the back door of the home Giles shouted “here,” and shot him twice, once in the neck and once in the chest. Giles, then, re-entered the Nelsons' home. Tony made an effort to go and get a gun, but was unable to do so due to his injuries. Instead, he crawled to, and hid under, his father's truck. Shortly, thereafter, he heard Giles and another man exit his parents' home. He saw the men only from the waist down. He heard one of them say that they needed to find Tony and that the other man should “get the money.” After they left, Tony went back inside. In his parents' bedroom he found his mother, his father, his sister, and his brother. All four had been severely wounded and there was blood all over them. Charlie and Brenda responded when Tony asked if anyone was still alive. His parents were dead. Tony rushed Brenda and Charlie to the hospital where all three, including Tony, were treated for their wounds.

Charlie Nelson testified that he saw Giles when his father, Carl Nelson, asked Giles to leave the home. He saw Tony leave and heard two gunshots. Giles, then, reappeared and shot Charlie's grandmother, who was standing in the doorway to Charlie's bedroom. Giles proceeded to Charlie's parents' bedroom from where Charlie heard more gunshots. Charlie ran to his parents' bedroom, where he saw Giles and another man, whom he positively identified at trial as the appellant. He realized that his mother, his father and his sister had all been shot. He jumped on top of his sister to protect her from further harm. As he lay there, he saw the appellant stab his mother and father with a knife. His mother and father were both moaning as the appellant repeatedly stabbed them. The appellant turned and stabbed Charlie's sister Brenda, who had already been shot above one eye. Charlie was hit in the head several times, after which the appellant stabbed him twice in the back.

On cross-examination Charlie admitted that during appellant's first trial Charlie had stated that Giles and the appellant appeared to be drunk. He also stated that Giles “ordered the appellant around” and directed the appellant to stab his victims. Brenda Nelson confirmed those parts of Tony's and Charlie's testimony as to things she had witnessed. She identified the appellant at trial as the man she saw repeatedly stabbing her mother. She stated that Giles was the one that shot her, Brenda, in the head.

Dr. Joseph Embry of the Alabama Department of Forensic Science testified that Willene Nelson died from multiple stab wounds that damaged her heart, lungs, and kidneys. Her body received 29 knife wounds (17 stab wounds and 12 slash wounds), numerous lacerations and abrasions about the head from a blunt instrument, and one gunshot wound to the left shoulder. Dr. Embry testified that Carl Nelson died from a combination of gunshot wounds and stab wounds. He was shot once through the heart and once in the left arm. He was stabbed, approximately, eight times, including a stab wound in the neck which severed his spinal cord. He also received numerous blunt instrument abrasions about the head. Dr. Embry testified that Carl Nelson was alive when he was stabbed in the neck.

Billy Irvin, an investigator with the Blount County Sheriff's Department, testified that he interviewed the appellant at 8:15 a.m. on November 11, 1978. During this interrogation the appellant confessed to his participation in the events at the Nelsons' home the previous night. Appellant's confession was tape recorded and transcribed. The appellant reviewed the transcript of his confession and signed it, voluntarily. After the trial court conducted a hearing and determined that appellant's confession was, indeed, voluntary, Irvin was permitted to read it to the jury.

In appellant's statement, he admitted participating in the activities that resulted in the deaths of Willene and Carl Nelson. According to the appellant, although they never found any money, he and Giles went to the Nelsons' home to rob Carl Nelson. Giles had told the appellant that Carl Nelson had not sufficiently paid Giles for work Giles had done for Nelson in the past. Giles and the appellant had been drinking rum and beer prior to their trip to the Nelsons' home. They were both armed with .32 caliber pistols, but appellant's pistol would not fire at the Nelsons' home because he lost the firing pin. The appellant's statement confirmed the gruesome details of the attack on the Nelson family. He stated that by the time he entered the back bedroom, Giles had already shot and stabbed “everyone.” In his own words the appellant stated:

“I goes off in the other room where he [Giles] at ... shot and stabbed them all there, you know, the kids and ... he looks at me and tells me, you know, that I had to do something and I told him that I didn't have a knife so he gave me one and I cut the mother and another man and cut the boy and that's all I did.”

The appellant further stated that he used a butcher knife that Giles had, apparently, obtained from inside the Nelsons' home. He also said that the “little girl” at one point begged him not to do it, and that the “woman” moved right before he stabbed her. The appellant explained that when he stabbed the “woman” he “really was just so gone, I just closed my eyes” and stabbed wildly.

Although his confession was admitted into evidence, the appellant did not testify in his own behalf at trial, except during the suppression hearing on the issue of the voluntariness of his confession. In defense, he presented excerpts of the transcribed testimony, from his first trial, of several state's witnesses for impeachment purposes. He also presented his alleged accomplice, Arthur Lee Giles, who invoked his Fifth Amendment rights, and refused to testify. Appellant's theory in defense was that his participation in the double murder fell short of capital murder because Giles did all the actual killing and he, the appellant, only did what Giles instructed him to do.

The jury found the appellant “guilty as charged in the indictment” and the trial court, in accordance with the jury's recommendation, sentenced the appellant to death by electrocution.

* * *

The trial court found four aggravating circumstances in this case: (1) the defendant was previously convicted of a felony involving violence to the person, Ala.Code § 13-11-6(2) (1975); (2) the defendant knowingly created a great risk of death to many persons, Ala.Code § 13-11-6(3) (1975); (3) the capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or in an attempt to commit, robbery, Ala.Code § 13-11-6(4) (1975); and (4) the capital felony was especially heinous, atrocious or cruel, Ala.Code § 13-11-6(8) (1975). These four aggravating circumstances were amply supported by the evidence. In addressing the mitigating circumstances, however, the trial court merely concluded “that the aggravating circumstances outweighs [sic] the mitigating circumstances.” (CR. 18) As was the case in Hubbard v. State, 382 So.2d 577, 596 (Ala.Cr.App.1979), affirmed, 382 So.2d 597 (Ala.1980), reversed on other grounds, 405 So.2d 695 (Ala.1981), the trial court's order is insufficient “because it does not specify the mitigating circumstances enumerated in section 13-11-7, Code of Alabama 1975, which it found insufficient to outweigh the aggravating circumstances.” “If no mitigating circumstances exist, the order should so state.” Hubbard v. State, supra. See, for example, Magwood v. State, supra.

For the reasons stated above the trial court is directed to extend its sentencing order in accordance with this opinion. REMANDED WITH DIRECTIONS. All the Judges concur.

ON RETURN TO REMAND

HARRIS, Judge.
This cause was remanded to the trial court with instructions for that court to extend its original sentencing order and properly consider and outline in written form the aggravating and mitigating circumstances it considered in the imposition of the death sentence. The trial court, having complied with our directions, the judgment of conviction should be affirmed. However, we must now consider the propriety of the death penalty imposed in this case in accordance with § 13A-5-53(a), Code of Alabama, 1975.

As detailed in the aforementioned code section, the review of the penalty must include a determination of whether any errors adversely affecting the rights of the appellant were committed in the sentencing phase of the proceedings, whether the trial court's findings in relation to aggravating and mitigating circumstances are supported by the evidence, and whether the sentence of death was proper in this case.

After having reviewed the sentencing procedure utilized by the trial judge, we find no errors that adversely affected the rights of the appellant. Furthermore, a review of the trial court's written findings, those made initially and on remand, regarding the aggravating and mitigating circumstances of the case reveals that the findings of trial court are supported by the evidence.FN1

FN1. The trial court's original order and judgment at the sentencing hearing are hereto attached as Exhibit A, along with the order and judgment on remand. The questions that should be considered in determining whether the death sentence was proper in this case are as follows: “(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;” “(2) Whether an independent weighing of the aggravating circumstances at the appellate level indicates that death was the proper sentence; and “(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” § 13A-5-53(b). Code of Alabama, 1975. See Beck v. State, 396 So.2d 645 (Ala.1980). Nothing in the record before us reflects that the death penalty was imposed under the influence of passion, prejudice or any other arbitrary factor.

We have also independently weighed the aggravating and mitigating circumstances in this case and we are convinced that, without a doubt, the death penalty was a proper sentence. The facts of the capital offense are especially heinous, atrocious and cruel. The victims of appellant's execrable crime were not only shot several times by appellant's partner, but they were barbarously and ferociously stabbed numerous times by both the assailants and two of the victims died as a result of the injuries inflicted.

The facts indicate that appellant's previous felony conviction was for a crime in which he was only an accomplice; nevertheless, a jury heard the evidence against the appellant and convicted him of murder in the second degree and subsequent to that conviction he pled guilty to assault. The sentence he received for the prior conviction and guilty plea were served concurrently. Thus, the prior convictions were properly considered by the trial judge in assessing appellant's proper punishment in the case at bar. There is no concrete evidence to support the proposition that appellant was under extreme mental and emotional stress during the criminal actions. Nor can we give any credence to the belief that the appellant was a mere bystander or accomplice in the massacre of the victims, and that his involvement was relatively minor. Any additional statutory or non-statutory mitigating circumstances are not present in this case. Consequently, we find that any mitigating circumstances, if they exist at all, do not outweigh the aggravating circumstances present in this case.

We also find that the death penalty imposed on the appellant is not excessive or disproportionate to the penalty imposed in similar cases. See e.g., Hill v. State, 455 So.2d 930 (Ala.Crim.App.1984), aff'd, 455 So.2d 938 (Ala.1984); Tomlin v. State, 443 So.2d 47 (Ala.Crim.App.1979), affirmed, Ex parte Tomlin, 443 So.2d 59 (Ala.1983); Berard v. State, 402 So.2d 1044 (Ala.Crim.App.1980); Crawford v. State, 377 So.2d 145 (Ala.Crim.App.), affirmed, Ex parte Crawford, 377 So.2d 159 (Ala.1979), vacated on other grounds, 448 U.S. 904, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980).

In accordance with Rule 45A, A.R.A.P., we have carefully reviewed the record for any errors which would have adversely affected the rights of the appellant and have found none. The sentence of death was appropriate in this case. For this and previously enumerated reasons, the judgment of the trial court is hereby affirmed. AFFIRMED, ORIGINAL OPINION EXTENDED. All the Judges concur.

Jones v. Campbell, 436 F.3d 1285 (11th Cir. Ala. 2006) (Habeas).

Background: Following affirmance on direct appeal of his state court conviction for capital murder and his death sentence, 520 So.2d 543, and 520 So.2d 553, petitioner filed for federal habeas relief. The United States District Court for the Northern District of Alabama, No. 00-03608-CV-J-S, Inge P. Johnson, J., denied petition. Petitioner appealed.

Holdings: The Court of Appeals, Dubina, Circuit Judge, held that:
(1) defense counsel did not perform deficiently in failing to investigate and present mitigating evidence of petitioner's mental illness during sentencing phase;
(2) counsel's failure to present evidence petitioner's childhood abuse during sentencing phase did not deprive him of effective assistance of counsel;
(3) petitioner's claim, that his defense counsel was ineffective for failure to present mitigating evidence that he suffered from toxic psychosis on night of the murders, was procedurally defaulted;
(4) counsel's failure to present mitigating evidence that petitioner suffered from toxic psychosis did not deprive him of effective assistance of counsel;
(5) petitioner was not prejudiced by counsel's failure to present certain mitigating evidence;
(6) jury instruction on malice aforethought for first-degree murder did not relieve state of its burden of persuasion on element of malice;
(7) any error in malice instruction was harmless; and
(8) petitioner procedurally defaulted his claim that his trial counsel's racial bias against him deprived him of effective assistance of counsel. Affirmed.

DUBINA, Circuit Judge:
An Alabama jury found petitioner Aaron Lee Jones (“Jones”) guilty of capital murder and recommended that he be sentenced to death. After exhausting his state court remedies, Jones filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. The district court denied Jones's habeas petition, but granted a certificate of appealability (“COA”) on several claims of ineffective assistance of counsel. After a thorough review of the record, and having the benefit of oral argument and the parties' briefs, we affirm the district court's judgment denying Jones habeas relief.

I. BACKGROUND
A. Facts

The facts are recited verbatim from the opinion of the Alabama Court of Criminal Appeals on direct appeal from Jones's conviction and sentence.

Tony Nelson testified that on the morning of November 10, 1978, he was sleeping with his ten-year-old brother, Charlie, in one of the bedrooms of his parents' home in the Rosa community in rural Blount County, Alabama. His thirteen-year-old sister, Brenda, was sleeping with their parents, Willene and Carl Nelson, in another bedroom. Tony's grandmother was sleeping by herself in a third bedroom of the home.

At 3:27 a.m. Tony was awakened by a disturbance inside the home. When the light in his bedroom was turned on, he saw Arthur Lee Giles, a former employee of his father, standing in the doorway of Tony's bedroom. Tony's father appeared and asked Giles to leave. Tony got out of bed and followed Giles to make sure Giles left as directed. As Tony stepped out the back door of the home Giles shouted “here,” and shot him twice, once in the neck and once in the chest. Giles, then, re-entered the Nelsons' home. Tony made an effort to go and get a gun, but was unable to do so due to his injuries. Instead, he crawled to, and hid under, his father's truck. Shortly, thereafter, he heard Giles and another man exit his parents' home. He saw the men only from the waist down. He heard one of them say that they needed to find Tony and that the other man should “get the money.” After they left, Tony went back inside. In his parents' bedroom he found his mother, his father, his sister, and his brother. All four had been severely wounded and there was blood all over them. Charlie and Brenda responded when Tony asked if anyone was still alive. His parents were dead. Tony rushed Brenda and Charlie to the hospital where all three, including Tony, were treated for their wounds.

Charlie Nelson testified that he saw Giles when his father, Carl Nelson, asked Giles to leave the home. He saw Tony leave and heard two gunshots. Giles, then, reappeared and shot Charlie's grandmother, who was standing in the doorway to Charlie's bedroom. Giles proceeded to Charlie's parents' bedroom from where Charlie heard more gunshots. Charlie ran to his parents' bedroom, where he saw Giles and another man, whom he positively identified at trial as the appellant. He realized that his mother, his father and his sister had all been shot. He jumped on top of his sister to protect her from further harm. As he lay there, he saw the appellant stab his mother and father with a knife. His mother and father were both moaning as the appellant repeatedly stabbed them. The appellant turned and stabbed Charlie's sister Brenda, who had already been shot above one eye. Charlie was hit in the head several times, after which the appellant stabbed him twice in the back.

On cross-examination Charlie admitted that during appellant's first trial Charlie had stated that Giles and the appellant appeared to be drunk. He also stated that Giles “ordered the appellant around” and directed the appellant to stab his victims. Brenda Nelson confirmed those parts of Tony's and Charlie's testimony as to things she had witnessed. She identified the appellant at trial as the man she saw repeatedly stabbing her mother. She stated that Giles was the one that shot her, Brenda, in the head.

Dr. Joseph Embry of the Alabama Department of Forensic Science testified that Willene Nelson died from multiple stab wounds that damaged her heart, lungs, and kidneys. Her body received 29 knife wounds (17 stab wounds and 12 slash wounds), numerous lacerations and abrasions about the head from a blunt instrument, and one gunshot wound to the left shoulder. Dr. Embry testified that Carl Nelson died from a combination of gunshot wounds and stab wounds. He was shot once through the heart and once in the left arm. He was stabbed, approximately, eight times, including a stab wound in the neck which severed his spinal cord. He also received numerous blunt instrument abrasions about the head. Dr. Embry testified that Carl Nelson was alive when he was stabbed in the neck.

Billy Irvin, an investigator with the Blount County Sheriff's Department, testified that he interviewed the appellant at 8:15 a.m. on November 11, 1978. During this interrogation the appellant confessed to his participation in the events at the Nelsons' home the previous night. Appellant's confession was tape recorded and transcribed. The appellant reviewed the transcript of his confession and signed it, voluntarily. After the trial court conducted a hearing and determined that appellant's confession was, indeed, voluntary, Irvin was permitted to read it to the jury.

In appellant's statement, he admitted participating in the activities that resulted in the deaths of Willene and Carl Nelson. According to the appellant, although they never found any money, he and Giles went to the Nelsons' home to rob Carl Nelson. Giles had told the appellant that Carl Nelson had not sufficiently paid Giles for work Giles had done for Nelson in the past. Giles and the appellant had been drinking rum and beer prior to their trip to the Nelson's home. They were both armed with .32 caliber pistols, but appellant's pistol would not fire at the Nelsons' home because he lost the firing pin. The appellant's statement confirmed the gruesome details of the attack on the Nelson family. He stated that by the time he entered the back bedroom, Giles had already shot and stabbed “everyone.” In his own words the appellant stated:

“I goes off in the other room where he [Giles] at ... shot and stabbed them all there, you know, the kids and ... he looks at me and tells me, you know, that I had to do something and I told him that I didn't have a knife so he gave me one and I cut the mother and another man and cut the boy and that's all I did.”

The appellant further stated that he used a butcher knife that Giles had, apparently, obtained from inside the Nelsons' home. He also said that the “little girl” at one point begged him not to do it, and that the “woman” moved right before he stabbed her. The appellant explained that when he stabbed the “woman” he “really was just so gone, I just closed my eyes” and stabbed wildly.

Although his confession was admitted into evidence, the appellant did not testify in his own behalf at trial, except during the suppression hearing on the issue of the voluntariness of his confession. In defense, he presented excerpts of the transcribed testimony, from his first trial, of several state's witnesses for impeachment purposes. He also presented his alleged accomplice, Arthur Lee Giles, who invoked his Fifth Amendment rights, and refused to testify. Appellant's theory in defense was that his participation in the double murder fell short of capital murder because Giles did all the actual killing and he, the appellant, only did what Giles instructed him to do.

The jury found the appellant “guilty as charged in the indictment” and the trial court, in accordance with the jury's recommendation, sentenced the appellant to death by electrocution.

B. Procedural History

In 1979, an Alabama jury found Jones guilty of murder made capital because two or more human beings were intentionally killed by one or a series of acts. See Ala.Code § 13-11-2(a)(10) (1979) (repealed in 1981). The jury recommended a death sentence, and the judge agreed with the jury's recommendation. The Alabama Court of Criminal Appeals reversed the trial court's judgment and ordered a new trial pursuant to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). See Jones v. State, 403 So.2d 1 (Ala.Crim.App.1981).

Following a retrial in 1982, a jury again found Jones guilty of capital murder and recommended that he be sentenced to death. The trial court followed the jury's recommendation and sentenced Jones to death. On appeal, the Alabama Court of Criminal Appeals remanded Jones's case for the trial court to clarify its sentencing order regarding the mitigating and aggravating circumstances. Following this limited remand, the Alabama Court of Criminal Appeals affirmed Jones's conviction and death sentence. See Jones v. State, 520 So.2d 543 (Ala.Crim.App.1984). The Alabama Supreme Court affirmed, see Ex parte Jones, 520 So.2d 553 (Ala.1988), and the United States Supreme Court denied certiorari review. See Jones v. Alabama, 488 U.S. 871, 109 S.Ct. 182, 102 L.Ed.2d 151 (1988).

In March 1990, Jones filed a petition for post-conviction relief pursuant to Rule 32, Ala. R.Crim. P., challenging his 1982 conviction and sentence. In May 1994, Jones filed an amended Rule 32 petition, reiterating numerous claims of ineffective assistance of counsel alleged in his original Rule 32 petition, and raising numerous other claims for relief. In November 1995, the trial court conducted an evidentiary hearing on Jones's allegations of ineffective assistance of counsel. In March 1996, Jones submitted several documents to support the allegations in his Rule 32 motion; namely, affidavits or depositions from Dr. B.E. Blankenship, Dr. Richard Cooksey, and Dr. James C. Thompson, who testified regarding Jones's mental health and childhood. In June 1996, the trial court entered an order denying Jones post-conviction relief.

In January 1997, Jones petitioned the trial court to supplement the record on appeal with an affidavit of Dr. Dave Davis, and the deposition of Dr. Scott Joseph. Jones stated that he filed courtesy copies of these two documents with the trial court in March 1996, but these documents were not part of the clerk's record. Dr. Davis, a psychiatrist, diagnosed Jones as suffering from paranoid schizophrenia. He also opined that Jones was in a state of toxic psychosis on the night of the murders, and due to this, Jones would have been unable to form the necessary intent to commit the crimes. R. Supp. Vol. 3, p. 616-18. Dr. Joseph, a psychiatrist, stated in his deposition that Jones had a history of psychosis and was taking Haldol to control his psychotic symptoms. R. Supp. Vol. 2, p. 384. However, Dr. Joseph admitted that at the time he evaluated Jones, Jones had no active psychotic features. Id. at 390. Dr. Joseph also acknowledged that he relied on Jones's prison medical charts to form his opinion. Id.

The Alabama Court of Criminal Appeals affirmed the trial court's order denying Jones post-conviction relief, see Jones v. State, 753 So.2d 1174 (Ala.Crim.App.1999), and the Alabama Supreme Court denied Jones's petition for writ of certiorari.

On December 15, 2000, Jones filed the present federal habeas petition. In his § 2254 petition, Jones alleged numerous claims of ineffective assistance of trial and appellate counsel. In addition, Jones asserted that (1) the state trial and appellate courts failed to consider adequately both statutory and non-statutory mitigating circumstances; (2) the trial court erred in failing to hold a competency hearing; (3) the evidence at trial was insufficient to show that he intended to kill anyone; (4) his conviction and death sentence were racially tainted; (5) the practice of Alabama appellate courts of limiting death penalty proportionality review to other death-sentenced cases results in an arbitrary application of the death penalty; (6) electrocution violates the Eighth and Fourteenth Amendments; (7) he was deprived of a fair and impartial jury because a particular juror failed to disclose during voir dire that he knew the sheriff, the deputies involved in the investigation, and the victims; and (8) he was deprived of a fair trial because a juror injected improper information into the jury deliberations. The district court denied Jones relief. The district court also denied Jones's motion to alter or amend the judgment, but did grant Jones a COA on four claims of ineffective assistance of counsel.

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The petitioner's burden to prove, by a preponderance of the evidence, that counsel's performance was unreasonable is a heavy one. See Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.2000) ( en banc). In order to establish deficient performance, the petitioner must show that, in light of all the circumstances, counsel's performance was outside the wide range of professional competence. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). The court's review of counsel's performance should focus on “not what is possible or what is prudent or appropriate, but only [on] what is constitutionally compelled.” Chandler, 218 F.3d at 1313 (quoting Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 3126, 97 L.Ed.2d 638 (1987)). The court's review of counsel's performance must be highly deferential, and the court must avoid second-guessing counsel's performance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. If the record is not complete regarding counsel's actions, then the courts should presume “that what the particular defense lawyer did at trial-for example, what witnesses he presented or did not present-were acts that some reasonable lawyer might do.” Chandler, 218 F.3d at 1314-15 n. 15. Moreover, the courts make an objective inquiry into the reasonableness of counsel's performance. Id. at 1315. For a petitioner to show deficient performance, he “must establish that no competent counsel would have taken the action that his counsel did take.” Id.

Lastly, there are no absolute rules dictating what is reasonable performance because absolute rules would restrict the wide latitude counsel have in making tactical decisions. See id. at 1317. “As such, at a sentencing proceeding, counsel is not required to present all mitigation evidence, even if additional mitigation evidence would have been compatible with counsel's strategy.” Putman, 268 F.3d at 1244. “Counsel's complete failure to present mitigation evidence does not necessarily constitute deficient performance, even if mitigation evidence is available.” Id. In light of these precepts, we will consider each of Jones's claims of ineffective assistance of counsel.

A. Investigation and presentation of mitigating evidence

Jones posits that his trial counsel, Jack G. Davis (“Davis”), who represented Jones at both trials, and George M. Boles (“Boles”) were ineffective at sentencing for failing to present evidence of his mental illness, his abusive and deprived childhood, and his substance abuse and intoxication on the night of the murders. Jones claims that this mitigation evidence would have established the existence of three statutory mitigating factors and negated two of the aggravating factors argued by the State, and the evidence would have cast substantial doubt on whether Jones had the specific intent required under Alabama's capital murder statute. Jones asserts that his counsel did no mitigation investigation: they did not speak with his family, friends or neighbors; they did not follow up on clear evidence of his mental illness; and they did not request his medical, educational, employment, or correctional records. Jones contends that this total failure to investigate available mitigation evidence was unreasonable in light of local professional standards. Therefore, Jones asserts that he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment.

1. mental illness

Jones claims that he is, and was at the time of the crime, psychotic, that he suffers from organic brain damage, and that he is a dependent personality and easily coerced. Jones asserts that numerous psychiatrists, psychologists and physicians have diagnosed him as psychotic. Jones contends that because his counsel failed to investigate his mental health history, the jury did not know about his psychosis.

With regard to this claim, the trial court made findings of fact following the Rule 32 evidentiary hearing. The trial court noted that Jones presented the testimony of Dr. Brad Fisher, an expert in clinical forensic psychology. Dr. Fisher testified that Jones suffered at the time of the crime and continues to suffer from significant mental conditions, such as dependency, multi-substance abuse, organic impairment, and major thought disorder. In reaching this opinion, Dr. Fisher reviewed Jones's prior court records, family members' affidavits, medical records, and prison records, which consisted of depositions from Dr. Thomas L. Smith and Dr. James C. Thompson in 1979, and the 1979 evaluation by Drs. Thompson and Smith done at Bryce Hospital for the Lunacy Commission. Dr. Fisher also personally evaluated Jones and interviewed family members, such as Maritha Erby (mother), Glen Jones (sister), Henry Erby (half-brother), Phyllis Faevers (half-sister), Johnny Wright (uncle), and Barbara Jones (niece).

The trial court then made the following factual findings:

The record reflects that counsel for petitioner investigated and pursued a mental health defense for the first trial. Petitioner had been evaluated by the Lunacy Commission. Previous counsel, during the first trial, had filed appropriate motions for mental evaluations and had conducted depositions of the mental health experts who evaluated petitioner. The trial court subsequently denied the motion for private psychiatric examination and testing and funds for an expert witness in the field of mental health to perform intelligence and personality tests on the petitioner. Thereafter, petitioner was granted his right to refile his motion for psychiatric examination and said motion was granted.

Subsequently, in preparation for the second trial, Jack Davis filed a motion for expert witnesses including mental health experts and filed a motion for private psychiatric examination and testing. That was denied by the Court on December 7, 1982. This Court finds that counsel in the 1982 trial filed the appropriate motions requesting mental health experts and the appropriate evaluations and tests to be performed upon petitioner and was denied relief by the Court. Petitioner claims that Davis and Boles did not adequately present the testimony available to them as to the mental health of the petitioner and had they presented the available information, they would have been allowed to present the testimony before the jury.

This Court, after having reviewed the records that were reviewed by Dr. Fisher, the testimony of witnesses and the depositions submitted by both parties of the prison physicians that treated the petitioner, finds that the basis for Dr. Fisher's opinion is questionable.

The first area of doubt is the diagnosis of psychosis. It appears that the original diagnosis was made by Dr. Richard Cooksey, a general practitioner for inmates in the prison system. On October 17, 1991, he examined the petitioner for weight loss. Petitioner had a weight-loss problem and Dr. Cooksey, not finding a physical reason for the problem, doubted an organic basis for weight loss and felt that the weight loss was a result of the petitioner just not eating. Petitioner told him that he would not eat anything on his tray if the tray came in contact with anything “unclean.” Although in his records he wrote that petitioner admitted auditory hallucinations, the doctor admitted that they were poorly described at the time. The doctor could remember nothing about the nature of the hallucinations. Admitting that he was not a psychiatrist, the doctor stated, “If he is not eating, he's psychotic. That's pretty much normal day-to-day functioning, eating.” ... He made notes reflecting his diagnosis of petitioner in the medical records of petitioner and recommended that petitioner would be best served at Kilby Correctional Institution where he would get treatment for his mental health.

... Therefore, even though the medical records indicate some sort of mental health history, including earlier records of the Lunacy Commission, this Court concludes that there has been no reasonable dependable diagnosis of psychosis to support the opinion of Dr. Fisher, and indeed it appears to this Court that there is no evidence of psychosis.

Although Dr. Fisher states that his testing showed that there is some organicity in the psychosis and other mental problems of the petitioner, there is no evidence to support this opinion .... This Court notes that it allowed the petitioner to be tested for any organic basis for mental health problems. Petitioner was transported to a facility which could perform the tests, but no test results or testimony was presented to this Court as to the result of those tests. Therefore, this Court concludes that there is no evidence of an organic basis for any mental health problems the petitioner might have.

The diagnosis of low intelligence is rebutted by testimony of family members who stated the petitioner did well in school and no evidence was presented to contradict that. Although the petitioner quit school before he graduated, he did later obtain his GED, which rebuts any evidence of low intelligence to the point where it would have an effect on the outcome of his trial or sentencing. ... All the testimony as to drug use reflects that the drug use was voluntary and there was no evidence of organic effects of his long-term drug use. Voluntary drug use has never excused or mitigated a crime of this nature in the State of Alabama nor does it in this case.

After considering the testimony of Dr. Fisher and examining the basis from which he formed his opinion, this Court is of the opinion that there is no credible evidence of significant mental health problems in petitioner. R. Vol. 8-9, ¶ . 1050-1055.

On appeal, the Alabama Court of Criminal Appeals agreed with the trial court's findings. We agree with the trial court that the evidence presented by Jones in support of this claim, including the testimony of Dr. Fisher and the depositions and affidavit of other expert witnesses, was not adequate evidence of a mitigating circumstance and was refuted by other testimony and evidence admitted at the hearing and at trial. Jones v. State, 753 So.2d at 1194. The court also found it significant that the trial court provided Jones with an opportunity to be tested to determine an organic basis for the alleged mental health problems, but Jones admitted no test results at his Rule 32 hearing and relied instead on opinion evidence. Id. The court also found significant the finding of the Lunacy Commission that Jones was not suffering from a mental illness at the time of the acts charged that would have prevented him from distinguishing right from wrong. Id. at 1194-95. The court concluded that Jones had failed to establish his burden with respect to this claim of ineffectiveness. Id. at 1195.

The state courts' determination that Jones did not meet his burden on the claim of ineffective assistance of counsel with regard to the presentation of mental illness mitigation evidence is not an unreasonable application of clearly established law and is not based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2). As the district court noted, “[m]uch of the evidentiary basis for petitioner's current claim of mental illness arose after his trial, during his imprisonment. Certainly, it was not objectively unreasonable for the state courts to discount this evidence that did not exist at the time the trial occurred.” District Court Record Vol. 2, Tab 27, p. 49. The information counsel had before them at the 1982 trial was the 1979 Lunacy Commission Report which indicated that Jones did not suffer from a mental illness. Furthermore, Boles testified at Jones's Rule 32 hearingFN1 that Jones did not have any problems communicating with him and Davis during trial. Id. at 167. Boles stated that he and Davis talked to Jones extensively about the sentencing, and they apparently concluded not to present any psychological or psychiatric testimony at sentencing. Id. at 105, 146. Boles emphasized that he relied heavily upon Davis's knowledge of the case because Davis represented Jones at his 1979 trial. Id. at 68. FN1. Jones's other counsel, Jack Davis, did not testify at the post-conviction hearing because he is deceased.

The factual determination made by the state courts is presumed to be correct unless the petitioner can rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Robinson v. Moore, 300 F.3d 1320, 1342 (11th Cir.2002), cert. denied, Robinson v. Crosby, 540 U.S. 1171, 124 S.Ct. 1196, 157 L.Ed.2d 1224 (2004). Jones presents no evidence to rebut the state courts' finding that Boles and Davis were not ineffective for failing to present at sentencing any evidence of Jones's alleged mental illness. At the time of trial, they did not have any evidence to indicate any potential mental illness, and instead, had a Lunacy Commission Report that stated to the contrary. Boles also stated that Jones had no problems communicating with him and Davis during trial, and he and Davis discussed whether to present mental health testimony at sentencing and concluded not to present such testimony. In light of this, we cannot say that the state courts' finding that Jones's counsels' performance was not deficient was an unreasonable determination of the facts.

2. abusive childhood

Jones contends that his counsel were ineffective because they did not present in mitigation any evidence of his abusive childhood. Jones asserts that the state courts' determination that the evidence of abuse was negligible was an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

The trial court found as follows concerning Jones's alleged abuse:

Petitioner's sister, Glen Jones, testified to abuse by their father. She testified that her father was rarely around but when he did come that he would make petitioner and Glen take off their clothes, would tie them to a door knob and beat them with a cord. She testified that the beatings with a cord were so severe that wire from the extension cord was embedded in their flesh. The Court concludes that this is an exaggeration and that had this abuse occurred there would be some obvious scarring from where such young children were beaten to the point where the insulation of an extension cord was torn off and wire was embedded in their skin. The other evidence of abuse is negligible.

The opinion of Dr. Fisher as to the effects upon petitioner of this “abusive childhood” is rebutted by other family members that testified, including Glen Jones. Their testimony suggests that, although petitioner had to live with relatives and was beaten by his father and had other problems with family members, he adjusted well. Petitioner made good grades in school and had no trouble with teachers. He was helpful to people and was polite and well behaved. He was able to maintain employment and although he had a few problems with attendance, was generally considered to be a good worker. Petitioner attended church and played in the school band. He was not a violent person growing up. R. Vol. 8-9, ¶ . 1053-54.

The trial court further noted that seven of Jones's family members testified at the Rule 32 hearing regarding Jones's childhood and upbringing. The trial court concluded that the evidence presented by the family members did not establish any mitigating circumstances that would have changed the outcome of Jones's sentence. In so concluding, the trial court noted that it was “easy to see why counsel would be reluctant to call Glen Jones for the second trial after hearing her testimony from the first trial.” R. Vol. 9, p. 1059.

The petitioner was at her house the night of the murders. The sister testified that prior to leaving with Giles to go to the Nelsons, Jones was shooting drugs in her house. She did not question or object to the use of drugs by her brother in her house with her children present. She also testified as to the extent that everybody was intoxicated or high, which was inconsistent with her testimony that she allowed no one but her brother to use drugs in her home. Her testimony as to how Giles talked Jones, the petitioner, into going to the Nelsons, shows that there was not much coercion utilized by Giles. He simply asked Jones more than once to go and Jones agreed. This testimony would have seriously prejudiced the petitioner in the trial of this case and since petitioner was convicted in his 1979 trial, trial counsel in the 1982 trial had good reason to avoid using Glen Jones as a witness. Id. at 1059-60. The court provided further assessment of the family members' testimony:

The mitigating evidence presented by the petitioner shows no more than a child of a broken family that had positive and negative influences in his life but chose to follow the friends that he grew up with that were taking drugs. From the testimony of these witnesses it is apparent that petitioner had the ability to do well in school, had people in whom he could confide and by whom he could be advised, was involved in church activities such as choir and other extracurricular activities such as playing in the school band. The petitioner's temperament was peaceful and the only negative influence appears to be the influence of his friends who used drugs.

Aaron Jones had the abilities and the opportunities to make the choices that everyone has to make in life and made the incorrect choice. When Aaron Jones started using drugs his life changed. His mitigation is that the drugs made him commit the crime. Frequently this has been interposed as a defense and as mitigation but it has never been accepted as an excuse to mitigate this type of crime. The testimony of these witnesses is unconvincing. Had it been presented to the jury it would not establish mitigation for the acts of the petitioner. Id. at 1062.

After reviewing the testimony of Jones's family members and friends, the Alabama Court of Criminal Appeals agreed with the trial court's finding. The court concluded that “none of their testimony supported a finding of a mitigating circumstance recognized by § 13A-5-51, Ala.Code 1975, and would not have changed the balance of the mitigating and aggravating circumstances in Jones's case.” Jones v. State, 753 So.2d at 1196-97. The court further noted that because there was no error in the trial court's determination that the evidence would not have changed the outcome of Jones's trial, it could not say that Jones's trial counsel were ineffective for failing to present the testimony of Jones's family members and friends . Id. at 1197. “Jones has not established a reasonable probability that but for his counsel's failure to call these witnesses and present the alleged mitigating evidence during the sentencing phase of his trial that the outcome of the sentencing proceeding would have been different.” Id. Thus, the appellate court agreed with the trial court's ruling that Jones's counsel were not ineffective in failing to call these family members to testify at sentencing. Id.

Based upon our review of the entire record, we conclude that the Alabama courts properly found that Jones's attorneys were not ineffective in failing to present evidence at sentencing about his abusive childhood and upbringing. The testimony at the Rule 32 hearing indicates that other than Glen Jones's testimony, the evidence of abuse was negligible. Additionally, Glen Jones's testimony was contradictory and potentially more harmful than helpful. Furthermore, Boles testified that he recalled that Davis talked to family members and mentioned that there was some problem or estrangement within the family. R. Vol. 1, p. 102. In light of this, we cannot say that the Alabama courts' determination is contrary to or involves an unreasonable application of federal law as determined by the Supreme Court. Nor can we say that the state courts' decision is based on an unreasonable determination of the facts that were presented during the state court proceedings.

3. substance and alcohol abuse

Jones asserts that his attorneys were ineffective because they failed to present evidence that he was suffering from a toxic psychosis on the night of the murders and was not able to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. The trial court noted Glen Jones's testimony that Jones had been drinking and doing drugs the night of the murder in its consideration of the possible mitigation evidence counsel should have presented at sentencing. The trial court, however, did not single out this issue as one of ineffectiveness, nor did the Alabama Court of Criminal Appeals. The portion of the state court opinion that Jones attacks deals with counsels' failure to present intoxication as a defense during the guilt phase of the trial. See Jones v. State, 753 So.2d at 1190-91.

The district court considered this issue and found that counsel were not ineffective for failing to present evidence of Jones's intoxication in mitigation. The district court noted that evidence of Jones's drug use was presented to the jury during the guilt stage. Witnesses testified at the 1982 trial that Jones appeared drunk, and Jones admitted in his confession that he had been drinking heavily the day of the murder, and that he was “so far gone” that he stabbed wildly. The district court concluded that there was no reason to believe that the jury failed to consider this guilt stage testimony for whatever mitigating power it had during the sentencing stage. District Court Record, Vol. 2, Tab 27, ¶ . 41-42.

Because Jones did not raise this specific claim of ineffective assistance of counsel in state court, the claim is procedurally barred. See Johnston v. Singletary, 162 F.3d 630, 634-35 (11th Cir.1998). Assuming arguendo that Jones raised in state court the specific claim that counsel were ineffective for failing to present evidence of his toxic psychosis in mitigation, the claim lacks merit. The only evidence Jones proffers to support his claim is the affidavit of Dr. Davis. Dr. Davis opined that Jones was suffering from toxic psychosis on the night of the murders; however, Dr. Davis's affidavit was submitted after the Rule 32 hearing, and the State had no opportunity to cross-examine him. Because Jones fails to present any credible evidence to support his claim of toxic psychosis, he cannot show that his counsel were ineffective for failing to present this alleged evidence in mitigation.

4. prejudice

Jones cannot demonstrate that his counsels' performance at sentencing was deficient. Nor can Jones demonstrate that he was prejudiced by counsels' failure to present the mitigating evidence of Jones's alleged mental illness, his abusive childhood, and his alleged toxic psychosis. As noted earlier, the Alabama state courts correctly found that the evidence submitted by Jones during his state post-conviction proceeding was not mitigation evidence that would have changed the outcome of his sentencing. The Alabama Court of Criminal Appeals applied the proper prejudice standard under Strickland and found that Jones did not establish “a reasonable probability that but for his counsel[s'] failure to call these witnesses and present the alleged mitigating evidence during the sentencing phase of his trial that the outcome of the sentencing proceeding would have been different.” Jones v. State, 753 So.2d at 1197. The court considered the totality of the alleged mitigation evidence and concluded that “because we have determined that evidence of Jones's alleged mental illness, the forensic evidence, and the testimony of family and friends would not have established a mitigating circumstance, we cannot hold that Jones's trial counsel [were] ineffective for failing to present this evidence.” Id.

Given the heinousness of the crime and the overwhelming evidence of Jones's guilt, there simply is no reasonable probability that counsels' failure to present evidence of Jones's alleged mental health problems, his abusive childhood, and his excessive drinking on the night of the murders prejudiced Jones. Jones, armed with a gun, went with Giles to rob the Nelsons. Once inside the house, Jones stabbed three of the four victims, two of whom died from these injuries. Moreover, Jones stabbed the victims in front of their two children, while one child begged him to stop. Jones also stabbed one of the children in the back. In light of this evidence, there is no reasonable probability that the outcome of the sentencing proceeding would have been different had counsel presented this mitigation evidence. Accordingly, Jones is not entitled to relief on these claims of ineffective assistance of counsel.

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Jones has not shown that his counsel rendered ineffective assistance to him at either his trial or sentencing. Jones cannot establish that in light of all the circumstances, his counsels' performance was outside the wide range of professional competence. Jones also cannot establish that his counsels' alleged deficient performance prejudiced the outcome of his trial or sentencing. Accordingly, we affirm the district court's judgment denying Jones habeas relief. AFFIRMED.