BRYANT E. TURNER APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-12-921]
HONORABLE CHARLES E. CLAWSON, JR., JUDGE
E. Turner, pro se appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
2013, appellant Bryant E. Turner was found guilty of
aggravated robbery and theft of property with a firearm
enhancement and was sentenced to life imprisonment in case
number 23CR-12-921 in the Faulkner County Circuit
Court. On direct appeal from the judgment, Turner
challenged the sufficiency of the evidence to support the
convictions. We affirmed. Turner v. State, 2014 Ark.
415, 443 S.W.3d 535.
December 18, 2014, Turner timely filed in the trial court a
verified pro se petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2013) seeking to
vacate the judgment on the grounds that he was denied
effective assistance of counsel and that he was denied a fair
and impartial trial because the trial judge was aggravated
with him and the jury was all white, as were the victims. In
2015, Turner filed an amended petition in which he enlarged
on the claims raised in the original petition. After a
hearing was held, the petition was denied, and Turner brings
considering an appeal from a trial court's denial of a
Rule 37.1 petition when the petition was based on claims that
counsel was ineffective, the sole question presented is
whether, under the standard set forth by the United States
Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984), the trial court clearly erred in holding that
counsel's performance was not ineffective. Anderson
v. State, 2011 Ark. 488, 385 S.W.3d 783; Sparkman v.
State, 373 Ark. 45, 281 S.W.3d 277 (2008). In making a
determination of ineffective assistance of counsel, the
totality of the evidence must be considered. Henington v.
State, 2012 Ark. 181, 403 S.W.3d 55.
benchmark for judging a claim of ineffective assistance of
counsel is "whether counsel's conduct so undermined
the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just
result." Strickland, 466 U.S. at 686. Pursuant
to Strickland, we assess the effectiveness of
counsel under a two-prong analysis. First, a claimant must
show that counsel's performance was deficient. Britt
v. State, 2009 Ark. 569, 349 S.W.3d 290. Counsel is
presumed effective, and allegations without factual
substantiation are insufficient to overcome that presumption.
Henington, 2012 Ark. 181, 403 S.W.3d 55. 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.
Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449
(1992). A court must indulge in a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Henington, 2012
Ark. 181, 403 S.W.3d 55.
a claimant must also show that this deficient performance
prejudiced his defense so as to deprive him of a fair trial.
Id. The petitioner must show that, even if
counsel's conduct is shown to be professionally
unreasonable, the judgment will stand unless the petitioner
can demonstrate that counsel's error had an actual
prejudicial effect on the outcome of the proceeding.
Strickland, 466 U.S. at 691. A petitioner, in
claiming deficiency, must show that "counsel's
representation fell below an objective standard of
reasonableness." Id. A petitioner must also
demonstrate that there is a reasonable probability that, but
for counsel's errors, the fact-finder would have had a
reasonable doubt respecting guilt, or in other words, that
the decision reached would have been different absent the
errors. Henington, 2012 Ark. 181, 403 S.W.3d 55. A
reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial.
Id. The language, "the outcome of the trial,
" refers not only to the finding of guilt or innocence,
but also to possible prejudice in sentencing. Howard v.
State, 367 Ark. 18, 238 S.W.3d 24 (2006). Unless a
petitioner makes both showings, it cannot be said that the
conviction resulted from a breakdown in the adversarial
process that renders the result unreliable. Id.
"[T]here is no reason for a court deciding an
ineffective assistance claim . . . to address both components
of the inquiry if the defendant makes an insufficient showing
on one." Strickland, 466 U.S. at 697.
standard of review in Rule 37.1 proceedings is that, on
appeal from a trial court's ruling on a petitioner's
request for Rule 37.1 relief, this court will not reverse the
trial court's decision granting or denying postconviction
relief unless it is clearly erroneous. Houghton v.
State, 2015 Ark. 252, at 5, 464 S.W.3d 922, 927. 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.;
Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001).
first argues in this appeal that the trial court erred by
ruling that his attorney was not ineffective for failing to
raise a "constitutional challenge" to the
victims' inability to definitively identify him as the
perpetrator. We first note that the trial court did not
specifically rule on the allegation, which was contained in
Turner's original Rule 37.1 petition. The trial court
merely held that there was not sufficient factual support for
Turner's allegations on which the court could grant
relief. If Turner desired a more specific ruling, it was his
burden to request it. An appellant has an obligation to
obtain a ruling on any omitted issues if those issues are to
be considered on appeal. Chatmon v. State, 2016 Ark.
126, at 8, 488 S.W.3d 501, 506, reh'g denied
(Apr. 21, 2016).
even if it could be said that the trial court reached the
issue when it declared that Turner failed to state facts to
support his claims of ineffective assistance of counsel,
there was no error because Turner's assertion that
counsel could have raised a constitutional challenge to the
victims' identification was entirely without explanation
for a basis on which counsel could have challenged the
identification. When the petitioner under the Rule does not
state a ground on which counsel could have based an
objection, he has not established that trial counsel was
remiss in not objecting. Wedgeworth v. State, 2013
Ark. 119, at 5 (per curiam). An appellant must do more than
allege prejudice-he must demonstrate it with facts.
Id. at 5-6.
similar claim, Turner next contends that the trial court
erred in rejecting his argument "on positive
identification" because the victims' identification
of him as the assailant was uncertain and eyewitness
testimony is inherently suspect. It is clear that Turner is
contending that the evidence was not sufficient to sustain
the judgment. We have repeatedly held that a claim of actual
innocence or other attack on the weight of the evidence to
support the judgment is a direct challenge to the sufficiency
of the evidence that is not cognizable in a Rule 37.1
proceeding. See Van Winkle v. State, 2016 Ark. 98,
at 11, 486 S.W.3d 778, 787; see also Scott v. State,
2012 Ark. 199, 406 S.W.3d 1. The sufficiency of the evidence
was a matter to be settled at trial and on the record on
direct appeal. Henson v. State, 2015 Ark. 302, at 7,
468 S.W.3d 264, 269 (per curiam). Likewise, the issue of the
credibility of a witness is not a ground for Rule 37.1
relief. Id. ...