1’iThis is an appeal from the trial court’s denial of a pro se petition for writ of. habeas corpus filed under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2016).
|2We need not consider the motion to supplement the addendum because there is clearly no merit to the appeal. An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go forward when it is clear that the appellant could not prevail. Marshall v. State,
MeClinton was convicted by a Jefferson County jury of raping a mentally handicapped sixteen-year-old girl, and he was sentenced as a habitual offender to a term of life imprisonment. We affirmed. MeClinton v. State,
MeClinton contended that due to the above-cited defects in the investigative and trial proceedings, he was entitled to scientific testing of evidence collected at the crime scene which had not been subjected to forensic analysis at the time of his trial. In, support of these claims, MeClinton attached to his habeas petition documents generated by the Pine Bluff Police Department, the Arkansas State Crime Lab, and the Jefferson Regional Medical Center. An attached police-department document listed items collected from the crime scene while two documents from the crime lab referenced a sexual-assault kit and a buccal swab taken from MeClinton. MeClinton asserted that, because the sexual-assault kit and the buccal swab were not collected from the crime scene and were not referenced in police-department records, the items lacked a proper foundation and were, therefore, of dubious origin. MeClin-ton also asserted that the attached medical record from the Jefferson County Regional Medical Center did not mention obtaining a sexual-assault kit. Finally, MeClinton alleged that investigators altered the DNA obtained from the buccal swab. In sum, MeClinton asserted that, due to the alleged unreliable nature of the sexual-assault kit and the buccal swab, and based on his bald assertion that this evidence had been falsified, he is entitled to additional forensic testing of the items collected from the crime scene. According to MeClinton, such testing of the evidence collected at the crime scene would prove his innocence.
The trial court denied relief and concluded that MeClinton failed to state grounds upon which relief could be granted under Act 1780. We do not reverse a denial of Lpostconviction relief unless the trial court’s findings are clearly erroneous. Polivka v. State,
Petitions under Act 1780 are limited to those claims related to scientific
UThe prerequisite for establishing a pri-ma facie claim under Act 1780 includes demonstrating the existence of evidence or scientific methods of testing that had not been available at the time of trial or could not have been previously discovered through the exercise of due diligence.
In his petition for habeas relief, McClinton did not allege that new evidence had come to light or that new methods of forensic testing became available that were not available at the time of his trial. Rather, McClinton contended that he is entitled to testing of items that had been collected at the crime scene and were available for forensic analysis at the time of trial, based on assertions that all other evidence presented at his trial lacked credibility or had been falsified. McClinton’s allegations in this regard are entirely Rconclusory and otherwise represent an attempt to pursue a remedy that was available at trial or on direct appeal. Marshall,
" Even assuming McClinton met the other prerequisites under’Act 1780, he failed to demonstrate that such testing would have produced material evidence of his innocence when, viewed in light of the evidence as a whole. Ark. Code Ann. § 16—112—201(a)(2); see Johnson,
Finally, despite McClinton’s allegations to the contrary, there was testimony from the nurse and the physician who attended the victim at the Jefferson Regional Medical Center that a sexual-assault’ kit had been properly obtained and provided to investigators -for forensic analysis. Testimony from the forensic analyst1 established that the vaginal and rectal ’swabs included in this kit contained a mixture of DNA from which neither the victim nor McClin-ton could be excluded. The analyst explained that only one in approximately 16 million individuals would potentially be included as DNA contributors to the mixture ofJjDNA found on those swabs, and 99.99 percent of black males would be excluded. In fact, the record demonstrates that the chief criminologist with the Arkansas State Crime Lab testified on cross-examination that testing the items found at the crime scene, including’bedding and two pairs of male underwear, would have been cumulative in view of the “more intimate” samples collected from the vaginal and -rectal swabs.
In sum, McClinton failed to demonstrate entitlement to habeas relief under Act 1780. His allegations challenging the credibility of the evidence, the efficacy of trial court’s rulings, and the effectiveness of counsel are not within the purview of the Act. Finally, McClinton failed to establish a prima facie showing of an entitlement to relief under the Act as he failed to identify new evidence or a new scientific method that was not available at the time of his trial, failed to show that identify was at issue during his trial, and otherwise failed to demonstrate that testing the crime-scene items would significantly advance his claim of innocence in light of all the evidence presented to the jury. Johnson,
Appeal dismissed; motion moot.
Notes
. McClinton's verifiéd pro se petition was properly filed in Jefferson County where he had been convicted of the offense that is the subject of his claim for relief, See Ark. Code Ann. § 16-112—203(c)(2), However, the circuit clerk erroneously assigned a civil docket number to the Act 1780 habeas proceedings rather than the original criminal docket number. Because the proceedings below were assigned a separate civil docket number, this court likewise assigned a civil docket number to this pending appeal.
. We may take judicial notice of the record from McClinton’s direct appeal without need to supplement the record that is now before this court. See Smith v. State,
. McClinton was convicted in May 2014 and filed his pro se petition for relief pursuant to Act 1780 in March 2017, within 36 months of his conviction, and his petition is presumed timely. Ark. Code Ann. § 16-112-202(10)(B).