Thompson v. StateThompson v. State
PER CURIAM
After the Arkansas Court of Appeals affirmed appellant James Thompson‘s conviction on two counts of rape, he filed in the trial court a timely, verified petition for postconviction relief under
An appeal from an order that denied a petition for a postconviction remedy will not be permitted to go forward where it is clear that the appellant could not prevail. Wedgeworth v. State, 2013 Ark. 119 (per curiam); Davis v. State, 2013 Ark. 118 (per curiam); Watson v. State, 2012 Ark. 27 (per curiam); Riddell v. State, 2012 Ark. 11 (per curiam); Hendrix v. State, 2012 Ark. 10 (per curiam); Croft v. State, 2010 Ark. 83 (per curiam); Crain v. State, 2009 Ark. 512 (per curiam). It is appropriate to dismiss the appeal because the claims for postconviction relief advanced by appellant in the
The general standard of review for an order that denies postconviction relief does not permit this court to reverse unless the trial court‘s findings are clearly erroneous. See Davis, 2013 Ark. 118; see also Cooper v. State, 2012 Ark. 123 (per curiam) (noting that issues concerning statutory interpretation are reviewed de novo). A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id.
Appellant presented three grounds for relief in the petitions and additionally alleged that he was entitled to an evidentiary hearing.
The first ground in the petitions alleged ineffective assistance of counsel on the bases that trial counsel failed to adequately conduct pretrial investigation or to subject the prosecutor‘s case to meaningful adversarial testing. The second ground alleged denial of due process on the basis that appellant did not commit the crimes, and the presentation of newly discovered evidence would demonstrate his actual innocence.2 The last ground alleged that appellant‘s right to be free from cruel and unusual punishment was violated when he received consecutive sentences despite mitigating factors.
We assess the effectiveness of counsel under the two-prong standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Lowe v. State, 2012 Ark. 185, ___ S.W.3d ___ (per curiam). Under the Strickland test, a claimant must show that counsel‘s performance was deficient, and the claimant must also show that the deficient performance prejudiced the defense to the extent that the appellant was deprived of a fair trial. Id. A claimant must satisfy both prongs of the test, and it is not necessary to determine whether counsel was deficient if the petitioner fails to demonstrate prejudice as to an alleged error. Pennington, 2013 Ark. 39.
A defendant making an ineffective-assistance-of-counsel claim must show that his
Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Hennington v. State, 2012 Ark. 181, ___ S.W.3d ___. In claiming a deficiency, a petitioner must show that counsel‘s representation fell below an objective standard of reasonableness. Id. The petitioner has the burden of overcoming the presumption by identifying specific acts and omissions that, when viewed from counsel‘s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
The burden is entirely on a petitioner in a
Appellant‘s first basis for ineffective assistance was that counsel had failed to conduct adequate pretrial investigation. Neither pleading provided any facts in support of an assertion of prejudice concerning that claim. The order indicates in its discussion of appellant‘s claim of newly discovered evidence that there was a reference to an individual named Robert Washington, who may have been a potential witness, but the order also noted that this reference was without any specific summary of Washington‘s potential testimony or any other
There was, likewise, no specific description of alleged prejudice from any failure to conduct adversarial testing of the prosecution‘s case. Appellant‘s pleadings did not identify any specific conduct by counsel regarding the alleged failure to test, much less demonstrate how that testing might have changed the decision of the fact-finder in appellant‘s trial.
Appellant‘s second ground for relief asserted that he was deprived of due process because he was actually innocent and that there was newly discovered evidence in that regard. The claim is not one cognizable in a proceeding under
Appellant‘s final claim in the pleadings was that his consecutive sentences were unconstitutional because there were mitigating factors that lessened his culpability. This court has previously rejected the argument that imposition of consecutive sentences is cruel and
All of appellant‘s claims in the pleadings were conclusory and without factual substantiation. It was not clear error for the trial court to summarily dismiss the petition without a hearing on the merits, and appellant cannot prevail on appeal.
Appeal dismissed; motion moot.
Appellant, pro se.
No response.