| TThis court granted a pro se motion for belated appeal that allowed appellant Jose Luis Fernandez to lodge an appeal of the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2011), because the trial court had failed to provide the required notice to appellant of entry of the order. Fernandez v. State,
A jury imposed a lifе sentence for appellant’s conviction on one count of rape. On appeal, this court affirmed the judgment. Fernandez v. State,
Appellant’s petition raised a number of claims of ineffective assistance of counsel as the basis for relief. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality of the evidence. Anderson v. State,
Our standard of review requires that we assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington,
Miller v. State,
In addition, in order to meet the second prong of the test, the petitioner must show that counsel’s deficient performance prejudiced petitioner’s defense so that he was deprived |3of a fair trial. Id.; see also Mitchem v. State,
There is a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and the burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice. Shipman v. State,
In the case at hand, appellant made only general assertions that did not provide sufficient factual substantiation for his claims of prejudice. Appellant made two claims of ineffective assistance of counsel: counsel failed to investigate information provided to him, and counsel failed to consult with or call an expert witness.
To the limited extent that the petition identified any specific evidence that may have been discovered through further investigation, that specific evidence was not evidence that would have been admissible or that was likely to have changed the outcome of the proceedings, except by way of impermissible prejudice. See Anderson,
In his claim of ineffective assistance for failure to investigate, appellant alleged that, had counsel performed sufficient investigation, he would have discovered evidence to challenge the viсtim’s “inabilities,” evidence of the victim’s prior sexual acts with other men of which her custodians were aware, evidence of the victim’s sexual advances toward appellant, and dried seminal fluid from appellаnt’s previous sexual encounter with his wife on a seat where the victim sat unclothed. The victim’s prior sexual encounters and any advances toward appellant had no relevance to the proceеdings because the basis for the rape charge was Arkansas Code Annotated section 5-14-103(a)(2)(B) or (C) (Repl.2006 & Supp.2009). Under that provision of the statute, the victim by definition was incapable of consent due to a mentаl defect or incapacitation. Evidence intended to show a lack of consent would not be admissible, because it was not relevant.
As for the remaining allegations that counsel did not adequately investigate prior to trial, appellant failed to identify any specific potential evidence that counsel would have discovered if an adequate investigation had been undertaken. Appellant did not identify any еvidence that counsel might have used to contest evidence that had been presented by the | ¿victim’s mother and teacher concerning her mental deficiencies. The teacher testified that the victim was enrolled in self-contained, functional classes. She indicated that the victim had “pretty significant cognitive deficits” and an IQ that was probably 60 or less, and she described some of the victim’s limitations. The teacher further described the victim as unable to ever live independently. The teacher recounted that the victim could copy words, but that she could not make a grocery list or form a sentence; that she could not do math even with a calculator; and that she was unable to give the time of day, the day of the week, or the month without assistance. Although the State indicated at a pretrial hearing that a mental evaluation of the victim had bеen conduct ed, appellant provided no information from that report that would have contradicted the evidence presented of the victim’s mental defect or incapacitation. Nor did he point to any other discoverable evidence that counsel could have used to contradict the evidence presented at trial.
Appellant asserted in the petition that counsel could have disсovered evidence of dried seminal fluid that would have supported his contention that the DNA found on the swabs was transferred to the victim from the seat in the van where he and his wife had had sex before the victim sat there in thе nude. The nurse who took the anal swab that eon-tained male, gender-specific DNA, which did not exclude appellant as a contributor, testified that she was trained to perform rape-kit examinations and exрerienced in the procedure. She’stated that the swab was taken from inside the rectum, not outside. The jury found that testimony credible because the verdict was rape and not a lesser-included offense that did not rеquire | ^penetration. Appellant failed to demonstrate that a more searching investigation would have changed the results of his trial.
Appellant’s last claim of ineffective assistance of counsel alleged that counsel failed to consult with or call an expert witness to testify. It is incumbent on the petitioner who claims ineffective assistance based on failure to call a witness to name the witness, provide a summаry of the testimony, and establish that the testimony would have been admissible into evidence. Shipman,
In the petition, appellant alleged that his attorney should have consulted with an expert about the DNA sample to present testimony on how the DNA might have been contaminated by DNA that was on the viсtim’s buttocks. Appellant did not, however, identify any expert or summarize the testimony that the expert would have provided if counsel had undertaken the additional investigation. He did not provide any factual substantiation in suрport of his allegation that an expert would, in fact, be able to provide testimony indicating that the anal swab was not properly collected or, even if properly collected, may have been contaminated. In order to overcome the presumption that counsel was competent, appellant was required to provide a demonstration of specific relevant evidence that wоuld have been uncovered in order to meet his burden to show prejudice. See Bell v. State,
Because none of the claims raised in appellant’s petition had merit, the trial court did not err in denying relief without a hearing, and appellant could not prevail on appeal. We accordingly dismiss the appeal, and the motion is moot.
Appeal dismissed; motion moot.