Russell v. State, 2016 Ark. 190

Background

Roy Lee Russell was convicted by a jury in 2013 of second-degree battery and being a felon in possession of a firearm; he was sentenced as a habitual offender to consecutive lengthy terms. He was acquitted of several other charges (kidnapping, aggravated assault, rape).
The Arkansas Court of Appeals affirmed on direct appeal and issued mandate on September 4, 2014. Russell filed a timely Rule 37.1 postconviction petition on September 11, 2014.
The trial court initially dismissed the petition for lack of jurisdiction; the Arkansas Supreme Court reversed and remanded for consideration on the merits.
On remand the trial court subpoenaed and reviewed Russell’s medical records, concluded the allegations of ineffective assistance were unsupported, and denied relief without an evidentiary hearing.
Russell appealed pro se, asserting multiple Strickland-based ineffective-assistance claims (failure to obtain/introduce medical records, failure to call/prepare witnesses including Dr. Maxwell, failure to object to multiplicitous counts, failure to object to prosecutor’s closing, failure to raise selective-prosecution, failure to challenge consecutive sentences, and failure to preserve sufficiency issues).
The Supreme Court of Arkansas affirmed, finding the trial court’s factual findings not clearly erroneous and that Russell failed to show deficient performance or prejudice sufficient to satisfy Strickland.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court erred by denying Rule 37 petition without evidentiary hearing	Russell: Court should have held a hearing on his claims	State: Court may deny without hearing when files/records conclusively show no relief	Denied — trial court sufficiently reviewed record, made written findings, and medical records were obtained and considered
Counsel ineffective for failing to obtain/introduce medical records	Russell: Records would show he was not the first aggressor and support defense	State: Records were cumulative of admitted injuries and wouldn’t change outcome	Denied — introduction would be cumulative and not prejudicial under Strickland
Counsel ineffective for failing to prepare/call witnesses (Dr. Maxwell)	Russell: With records Dr. Maxwell could have testified about Russell’s treatment and injuries	State: Jury already heard injury evidence; absent indication testimony would alter result, no prejudice	Denied — absence of additional testimony was cumulative; no reasonable probability of different outcome
Counsel ineffective for failing to object to multiplicitous counts	Russell: Count eight is lesser-included of count four; counsel should have objected	State: Russell acquitted of count four; no prejudice; issue addressed on appeal	Denied — meritless and no prejudice shown
Counsel ineffective for failing to object to prosecutor’s closing argument	Russell: Prosecutor vouched for victims’ credibility and counsel should have objected	State: Rebuttal comments were responsive to defense; failure to object within reasonable trial strategy	Denied — statements permissible as responsive; no prejudice shown
Counsel ineffective for failing to raise selective-prosecution claim	Russell: Harold Shepherd was similarly situated and not prosecuted due to race	State: Russell offered no specific factual basis showing similarly situated or discriminatory motive	Denied — allegations insufficient to warrant hearing or show counsel ineffective
Counsel ineffective for failing to challenge consecutive sentences	Russell: Counsel should have challenged consecutive sentencing	State: Jury recommended consecutive sentences; trial court properly exercised discretion	Denied — Russell failed to show what facts would have supported concurrent sentences
Counsel ineffective for failing to preserve sufficiency challenge for appeal	Russell: Counsel failed to properly challenge evidence sufficiency	State: Record contains substantial evidence supporting convictions	Denied — convictions supported by substantial evidence

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance standard)
Watson v. State, 444 S.W.3d 835 (Ark. 2014) (standard of review for postconviction findings; clear-error review)
Sanders v. State, 98 S.W.3d 35 (Ark. 2003) (Rule 37.3 and when evidentiary hearings are required)
Henington v. State, 403 S.W.3d 55 (Ark. 2012) (conclusory allegations unsupported by facts do not require a hearing)
Williams v. State, 476 S.W.3d 800 (Ark. 2015) (burden to show prejudice from omitted witness testimony)
Owens v. State, 128 S.W.3d 445 (Ark. 2003) (standard for selective-prosecution claims)
Throneberry v. State, 342 S.W.3d 269 (Ark. 2009) (trial court’s discretion over consecutive vs concurrent sentences)