Green v. State
2013 Ark. 455
Ark.2013Background
- James E. Green, Jr. convicted of failure to comply with sex-offender registration and of residing within 2,000 feet of a daycare; sentenced as a habitual offender to 540 months. Court of Appeals affirmed; petition for review denied.
- While direct-review petition for certiorari was pending, Green filed a Rule 37.1 postconviction petition; initial denial was premature and dismissed, then the trial court entered an amended denial and Green appealed.
- Principal basis of Rule 37.1 petition: challenge to the introduction of the Arkansas Department of Correction Risk Assessment and Offender Profile Report (the Report) at sentencing and related claims of ineffective assistance for counsel’s failure to object.
- Other claims included ineffective assistance for not moving for directed verdict, not requesting venue change or special prosecutor, failure to raise an "unforeseen circumstances" statutory defense, insufficiency of the evidence, judicial bias, double jeopardy and due-process violations, and prosecutorial misconduct/selective prosecution.
- Trial court denied relief without an evidentiary hearing (providing some findings as to the Report issue but not addressing all claims); Supreme Court reviewed whether the petition was wholly without merit and whether counsel was ineffective under Strickland.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of DOC Risk Assessment Report at sentencing / IAC for failure to object | Green: Report was inadmissible under Ark. law and prejudiced sentencing; counsel ineffective for not objecting | State: Report did not change outcome; prior convictions and habitual-offender evidence already supported sentence; counsel strategy | Court: No prejudice shown; sentence supported by other evidence; IAC claim fails; denial affirmed |
| Sufficiency of the evidence / directed verdict | Green: Insufficient proof he lived at trailer within 2,000 feet; trial court erred / biased in denying directed verdict | State: Sufficiency was litigated on direct appeal and rejected; not cognizable on Rule 37.1 | Court: Sufficiency is direct-appeal error and not reviewable in Rule 37.1; claim denied |
| Failure to assert "unforeseen circumstances" statutory defense | Green: Counsel should have raised the affirmative defense to delay in registration | State: Defense theory at trial was that Green never moved to that address, so the affirmative-defense theory conflicted with trial strategy | Court: Counsel's choice was plausible trial strategy; not deficient performance |
| Prosecutorial misconduct / selective prosecution; double jeopardy; due process | Green: Prosecutor maliciously/selectively prosecuted; Report referenced a previously acquitted rape charge implicating double jeopardy and due-process harm | State: Claims are conclusory, trial-error or prosecutorial-misconduct allegations alone do not support Rule 37.1 relief; lack of factual development | Court: Claims are conclusory or trial error and not cognizable in Rule 37.1 (double-jeopardy claim not pleaded with supporting facts); denied |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Williams v. State, 369 Ark. 104 (2007) (presumption that counsel’s conduct is reasonable; burden on petitioner to identify specific errors)
- McCraney v. State, 2010 Ark. 96 (2010) (standard for identifying deficiencies in counsel’s performance)
- Abernathy v. State, 2012 Ark. 59 (2012) (petitioner must show reasonable probability that outcome would differ but for counsel’s errors)
- Rowbottom v. State, 341 Ark. 33 (2000) (double-jeopardy claims are fundamental and may be raised in Rule 37.1 but must be supported by facts)