Burgess claim in Alabama

2000We have recently held: "while Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991) ] and Ex parte Henderson may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. `"Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weight t

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

2000We have recently held: "while Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991) ] and Ex parte Henderson may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. `"Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weight t

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

2000We have recently held: "while Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991) ] and Ex parte Henderson may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. `"Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weight t

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

2008The Court of Criminal Appeals remanded the cause to the trial court for a determination of "the factual basis of Burgess's allegations that several jurors failed to fully respond to voir dire questions and to determine when and how Burgess discovered the basis of these claims, and if the claims could have been raised by newly appointed counsel in Burgess's motion for a new trial." Burgess v. State , 21 So.3d 745 (Ala.Crim.App. 2006).

2008The Court of Criminal Appeals remanded the cause to the trial court for a determination of “the factual basis of Burgess’s allegations that several jurors failed to fully respond to voir dire questions and to determine when and how Burgess discovered the basis of these claims, and if the claims could have been raised by newly appointed counsel in Burgess’s motion for a new trial.” Burgess v. State, 21 So.3d 745 (Ala.Crim.App.2006).

2008Burgess further informed the trial court that the "claims were not raised at trial or on direct appeal because counsel had no information that such misconduct had occurred and therefore was under no obligation to raise the claims." Id.

2008Burgess further informed the trial court that the “claims were not raised at trial or on direct appeal because counsel had no information that such misconduct had occurred and therefore was under no obligation to raise the claims.” Id.

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

2005As we stated in Clemons v. State, [Ms. CR-01-1355, August 29, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003): "[W]e conclude that the decision in Atkins falls within Teague's first exception to the general rule of nonretroactivity and applies retroactively to cases that are on collateral review. [ See Teague v. Lane, 489 U.S. 288 (1989)].

2005Burgess, citing Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), argues that it is a violation of the Eighth Amendment of the United States Constitution to execute a mentally retarded individual and that he is borderline mentally retarded. *299 The circuit court erroneously held that Burgess's claim of mental retardation was procedurally barred because it was not presented in a timely filed Rule 32 petition.

2005Burgess, citing Atkins v. Virginia, 536 U.S. 304 , 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002), argues that it is a violation of the Eighth Amendment of the United States Constitution to execute a mentally retarded individual and that he is borderline mentally retarded. *299 The circuit court erroneously held that Burgess's claim of mental retardation was procedurally barred because it was not presented in a timely filed Rule 32 petition.

2000We have recently held: "`[W]hile Parker [v. Dugger, 498 U.S. 308 , 111 S.Ct. 731 , 112 L.Ed.2d 812 (1991)] and Ex parte Henderson, may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision whether a particular mitigating circumstance is proven and the weigh

1998However, while Parker and Henderson v. State may suggest that the differential treatment of an accomplice may be a proper subject for consideration as mitigating evidence in a capital case, neither case remotely holds that a trial court is obligated to so find, and neither case lends support to Burgess's claim that the trial court erred in his case. "`Although the trial court is required to consider all mitigating circumstances, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer.'" Boyd v. State, 715 So.2d 825, 840 (Ala

1988Where, as here, the trial judge has reviewed and overruled the defendant’s request for remittitur as a condition for the denial of a new trial, and where the amount of the verdict does not appear on its face to be the product of a biased or prejudiced jury, we find no necessity to follow the remand procedure set out in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986).