Opinion
No. CR 09-335
Opinion Delivered March 4, 2010
Pro se Motions for Extension of Time to File Reply Brief and to Supplement Reply Brief [Circuit Court of Ouachita County, CR 2006-141, Hon. Carol Anthony, Judge], Appeal Dismissed; Motions Moot.
In 2006, a jury found appellant Michael D. Dunlap guilty of possession of a controlled substance with intent to deliver and possession of drug paraphernalia. The judgment reflects an aggregate sentence of 480 months' imprisonment. The Arkansas Court of Appeals affirmed the judgment. Dunlap v. State, CA CR 07-452 (Ark. App. Nov. 28, 2007) (unpublished). Appellant timely filed in the trial court a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2009) that was denied. Appellant has lodged an appeal of the order in this court and has filed motions requesting additional time in which to submit a reply brief and to supplement the reply brief. As the outcome of the appeal is clear without need for appellant's submission of a reply brief, we dismiss the appeal and the motions are moot.
This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. French v. State, 2009 Ark. 443 (per curiam); Bunch v. State, 370 Ark. 113, 257 S.W.3d 533 (2007) (per curiam). Here, we can clearly determine from appellant's petition and the record in this case that appellant's arguments cannot be persuasive on appeal.
The only issues to be addressed in our review are those presented in appellant's brief-in-chief. We do not address the merits of a question where the argument is raised for the first time in a reply brief. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); see also Small v. State, 371 Ark. 244, 264 S.W.3d 512 (2007) (per curiam).
Appellant filed his original petition listing a number of allegations of ineffective assistance of counsel and seven additional claims as grounds for relief. Appellant also filed three motions seeking leave to file an amended and extended petition and a proposed amended petition. The trial court did not grant leave to amend the petition and, in the hearing on the petition, indicated that appellant was limited to the claims in his original petition. Appellant does not raise the trial court's failure to grant leave to amend as error on appeal; he does assert error by the trial court as to a number of issues that were not included in the order denying postconviction relief.
An appellant has an obligation to obtain a ruling on any issue to be preserved for appeal. Viveros v. State, 2009 Ark. 548 (per curiam); Johnson v. State, 2009 Ark. 460, ___ S.W.3d ___ (per curiam); see also Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006); Beshears v. State, 340 Ark. 70, 8 S.W.3d 32 (2000). The order denying postconviction relief addressed only the following two issues from appellant's petition: (1) allegations that one of the officers who testified was biased and perjured himself at trial; (2) allegations that counsel did not adequately investigate or prepare for trial. Our review is therefore limited to those claims.
Appellant's petition contained many vague, generalized complaints that trial counsel had not sufficiently prepared or investigated the case, had failed to call witnesses, had failed to object to the introduction of evidence, and had not communicated with appellant sufficiently or followed appellant's direction. Appellant claimed that one of the police officers who testified had given false testimony and that counsel had failed to object or cross-examine the officer. As to the allegations concerning the police officer, the trial court found that appellant failed to meet his burden of proof, that counsel had conducted an investigation, and that counsel found that the allegations concerning the officer's testimony had no support. As to the more general claim of lack of preparation, the trial court found that counsel had prepared, objected, conducted cross-examination, and argued discrepancies in the testimony to undercut the witnesses' credibility.
The petition also contained a number of allegations concerning prosecutorial misconduct, due process violations, and insufficient evidence. While we do not further address the allegations, we note that such claims may be raised on direct appeal and are not cognizable in Rule 37.1 proceedings. See Howard, 367 Ark. at 27, 238 S.W.3d at 32 (prosecutorial misconduct is an issue that may be raised on direct appeal and is therefore not a claim that may be raised in a Rule 37.1 petition).
This court does not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous. Jamett v. State, 2010 Ark. 28, ___ S.W.3d ___ (per curiam). 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. The trial court's denial of postconviction relief was not clearly erroneous.
The trial court addressed appellant's claims of ineffective assistance of counsel. Our standard of review applies the standard that was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). French, 2009 Ark. 443. Taking into consideration the totality of the evidence, we determine whether the trial court clearly erred in holding that counsel's performance was not ineffective. Id. Under the Strickland test, a claimant must show that counsel's performance was deficient, and the claimant must also show that this deficient performance prejudiced his defense so as to deprive him of a fair trial. Id. at 3; Walker v. State, 367 Ark. 523, 241 S.W.3d 734 (2006) (per curiam). Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam).
Here, appellant did not provide factual substantiation for his claims. Although appellant alleged that the police officer provided false testimony and that the officer had a relationship with one of the witnesses, he provided no more than conclusory statements to that effect. Conclusory statements cannot be the basis of postconviction relief. State v. Brown, 2009 Ark. 202, ___ S.W.3d. ___.
Trial counsel testified at the Rule 37.1 hearing that he had talked to the husband of the witness and had been unable to obtain information concerning the purported relationship between the witness and the police officer. He testified, and the record confirms, that he did question the police officer concerning the relationship. Appellant did not introduce any evidence or information of such a relationship that counsel might have found from further investigation or that counsel could have used to impeach the officer's testimony. Appellant's argument established no prejudice. As a result, the argument was merely a challenge to the witness's credibility and was therefore not a claim cognizable in a Rule 37.1 proceeding. See Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987).
Appellant's additional claims, his allegations that trial counsel did not communicate with him or investigate the case and was unprepared for trial, are likewise deficient in factual substantiation. General assertions that counsel did not meet with the defendant enough, or did not aggressively prepare for trial are not sufficient to establish an ineffective assistance of counsel claim. Thompson v. State, 307 Ark. 492, 821 S.W.2d 37 (1991). Where a defendant makes only conclusory allegations that fail to specify what the missing effort would have produced to reach a different result, the allegations will not sustain a claim of ineffective assistance of counsel. Furr v. State, 297 Ark. 233, 761 S.W.2d 160 (1988). The trial court did not err in finding that appellant failed to demonstrate prejudice as to these claims.
A petitioner carries the burden to prove his allegations for postconviction relief. Viveros, 2009 Ark. 548. We agree with the trial court that appellant failed to meet that burden. Accordingly, we dismiss the appeal and the motions are moot.
Appeal dismissed; motions moot.