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This court does not reverse a denial of postconviction relief unless the circuit court’s 12flndings are clearly erroneous. Banks v. State,
On appeal, appellant argues that trial counsel was ineffective for the following
In an appeal from a circuit court’s denial of a petition for postconviction relief under Rule 37.1, the sole question presented is whether, based on the totality of the evidence, the circuit court clearly erred in holding that counsel’s performance was not ineffective under the standard set forth in Strickland v. Washington,
With respect to the second prong of the test, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair trial. Holloway v. State,
As his first point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to impeach one of the State’s witnesses. Specifically, appellant asserts that the testimony of Officer Nathan Atchison regarding a confiscated lockbox containing cocaine, other drug paraphernalia, and a utility-payment receipt bearing appellant’s name was a “complete fabrication.” Appellant alleged in |4his petition that had counsel impeached the testimony of Officer Atchison, the following facts would have been revealed: (1) the lockbox was not located in appellant’s residence; (2) the key to the lockbox was not found on appellant’s person; (3) the utility-payment receipt was not found in the lock-box. Appellant further asserted that Officer Atchison’s testimony could have been
Contrary to appellant’s assertions, counsel could not have impeached Officer Atchison’s testimony regarding the location of the lockbox and key because Officer Atchison did not testify that the lockbox was found in appellant’s residence or that the key was found on appellant’s person. Rather, Officer Atchison’s testimony indicated that the lockbox was retrieved from a' nearby residence where appellant was located prior to the execution of the search warrant and that the key to the lockbox was found in appellant’s residence after appellant told him where it could be found. Officer Atchison’s testimony regarding the location of the lockbox and key was corroborated by the testimony of Officers Winn and Crabtree.
As for Officer Atchison’s testimony regarding appellant’s utility-payment receipt that was found in the lockbox, the trial record does not support that proper impeachment would have revealed inconsis-tences in Officer Atchison’s testimony; nor does the record support the [.¡allegation that counsel failed to impeach Officer At-chison’s testimony in this regard. Appellant alleged in his petition that had counsel properly impeached Officer Atchison’s testimony by questioning Officers Winn and Crabtree regarding the lockbox and its contents, he would have been able to show the jury that the utility-payment receipt bearing appellant’s name was not found in the lockbox. However, Officers Winn and Crabtree were, in fact, questioned regarding the contents of the lockbox. Officer Winn testified on direct and on cross-examination that while her report stated that the receipt was found in the same residence as the lockbox, her recollection is that it was found inside of the lockbox. Finally, Officer Crabtree testified as to his recollection of the contents of the lockbox, stating that he remembered finding a carpet-deodorizer container with a false bottom that contained cocaine inside and small plastic bags.
The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Hickey,
IfiAs his second point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective because he failed to present mitigating issues or call witnesses during the sentencing phase of trial. Specifically, appellant asserts that counsel did not call the three mothers of his children who would have testified, according to appellant, that he was a caring father. The circuit court denied relief on this point, finding that the subject-matter to which appellant contended his proposed three witnesses would have testified was covered
For ineffective-assistance-of-counsel claims based on failure to call a witness, this court has held that it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Smith v. State,
Moreover, the failure to call witnesses whose testimony would be cumulative to testimony already presented does not deprive the defense of vital evidence. Williams v. State,
As his third point on appeal, appellant argues that the circuit court erred in denying relief on his claim that counsel was ineffective in representing conflicting interests. Specifically, appellant asserts that counsel was involved in another lawsuit involving the grandparents of one of appellant’s children and that counsel was related to the mother of one of his children. The circuit court found appellant’s allegations to be conelusory and further found that appellant did not show prejudice.
It is well settled that prejudice is presumed only where counsel actively represents conflicting interests, and an actual conflict adversely affected counsel’s performance. Norris v. State,
Appellant next argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to object to certain statements made by the State in its 18closing arguments during the sentencing phase of trial. Appellant alleged in his petition that during closing arguments, the State purported that appellant was “one of the largest drug dealers in northwest Arkansas,” that appellant lied during his testimony, and that appellant’s children “would be better off without [appellant] in their lives.” However, appellant fails to cite to any part of the record where such statements were made; nor does he show how he was prejudiced by counsel’s failure to object.
With regard to the statement that appellant was one of the larger drug dealers in Northwest Arkansas, the record reflects that counsel addressed this in his own closing arguments, calling it a misnomer. Additionally, counsel responded to the
The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Payton v. State,
As his fifth point on appeal, appellant argues that the circuit court erred in denying postconviction relief where counsel “abandoned” him during the appellate process and failed to perfect an appeal. However, appellant acknowledged in his petition that counsel filed a |9notice of appeal on his behalf. Appellant did, in fact, perfect an appeal and was represented by different counsel on appeal, so he cannot show that he was prejudiced by any failure of trial counsel in this regard. Because appellant’s argument on this point is wholly lacking proof of prejudice, it falls short of meeting the two-pronged Strickland standard for ineffective assistance of counsel, and, thus, we cannot say that the circuit court erred in denying relief on this point.
Appellant next argues that the circuit court erred in denying relief on his claim that counsel was ineffective in failing to adequately prepare or “investigate the issues of the case,” failing to communicate with appellant in preparation of trial, and failing to contact witnesses identified by appellant. In its order denying postcon-viction relief, the circuit court found that appellant appeared in court with counsel on nine separate occasions prior to trial and ruled that appellant’s allegation regarding a lack of communication was con-clusory, as appellant failed to state what further communication with counsel would have produced and also failed to state how his counsel’s level of communication prejudiced the outcome of the case. The circuit court further found that appellant’s petition failed to identify the witnesses that he contended counsel should have called and also failed to show prejudice as a result of counsel’s failure to call such witnesses. We agree.
The burden is on the petitioner to demonstrate how a more searching pretrial investigation would have changed the results of trial. Watson v. State,
Regarding appellant’s claim that counsel did not contact witnesses identified by appellant, as we previously noted, a petitioner claiming ineffective assistance of counsel for failure to call a witness, must name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Smith,
The State may not deliberately or systematically deny to members of a defendant’s race the right to participate, as jurors, in the administration of justice. Gwathney v. State,
In the instant case, appellant does not provide any proof that African Americans were systematically excluded from the jury pool or that the selection process was skewed to exclude African Americans. Thus, appellant’s allegations are concluso-ry and insufficient to overcome the presumption that counsel was effective. See Carter v. State,
For these reasons, we affirm the circuit court’s denial of postconviction relief on all points.
Affirmed.
Notes
. Appellant was convicted of four counts of delivery of cocaine, three counts of delivery of marijuana, one count of possession of cocaine with intent to deliver, one count of possession of marijuana with intent to deliver, and one count of simultaneous possession of drugs and firearms.
. Appellant makes no argument on appeal regarding the denial of his motions for an evidentiary hearing and to appoint counsel. Therefore, we need not address those issues, as they have been abandoned for purposes of appeal. See Hobbs v. Jones,
. Further, as the circuit court noted in its order, the record reflects that appellant appeared in court with counsel on several occasions to attend omnibus and pretrial hearings.