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Abernathy v. State

Supreme Court of Arkansas

March 19, 2015

ROOSEVELT ABERNATHY, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

Counsel Amended April 20, 2015.

PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR POSTCONVICTION RELIEF PURSUANT TO ARKANSAS RULE OF CRIMINAL PROCEDURE 37.1 AND MOTION TO INTRODUCE EXHIBITS AS EVIDENCE PULASKI COUNTY CIRCUIT COURT, NO. 60CR-82-316.

PETITION DISMISSED; MOTION MOOT.

Roosevelt Abernathy, Pro se petitioner.

Dustin McDaniel, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for respondent.

Wendell Lee Griffen, Attorney General.

OPINION

Page 242

PRO SE

PER CURIAM

In 1982, petitioner was found guilty by a jury of capital felony murder and first-degree battery. An aggregate sentence of life imprisonment without parole was imposed. We affirmed. Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).

After the judgment was affirmed on appeal, petitioner sought leave from this court to proceed in the trial court with a petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (1982). The petition was denied. Abernathy v. State, CR-82-121, (Ark. Jan. 14, 1985) (unpublished per curiam).

In 2013, petitioner filed a second petition here to proceed under the Rule, raising a series of allegations of ineffective assistance of counsel. Under the applicable provision of the Rule, petitioner was required to raise all issues for postconviction relief in the original petition unless that petition was denied without prejudice. Ark. R. Crim. P. 37.2(b) (1982). Petitioner's original petition was not denied without prejudice to filing a subsequent petition. The petition was dismissed by syllabus entry on May 23, 2013.

Now before us is petitioner's third petition to reinvest jurisdiction in the trial court to consider a petition under the version of Arkansas Rule of Criminal Procedure 37.1 in effect when he became eligible to file a petition. As stated, petitioner was required to raise all issues for postconviction relief in the original petition. Also before us is petitioner's motion to introduce some exhibits as evidence. Because petitioner is not entitled to proceed again under the Rule, the petition is dismissed. The motion to introduce exhibits is moot.

Petitioner argues, as he did in his second petition, that he should be permitted to proceed again under the Rule pursuant to Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and related cases, arguing that his attorney at trial and on direct appeal was ineffective. Petitioner's reliance on Martinez and its progeny is misplaced.[1] The Martinez Court held that, when state law requires a prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney was not effective under the Sixth Amendment, the prisoner's failure to comply with state rules in bringing his collateral attack on the judgment will no longer bar a federal judge from granting habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral proceeding or his attorney was ineffective and if the petition filed in the state court had a meritorious claim. In Trevino v. Thaler, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), the Court extended its holding in Martinez to cases in which a state's procedural framework make it unlikely in a typical case that a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. Neither the ruling in ...


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