APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT 60CR-12-653]
HONORABLE HERBERT T. WRIGHT, JR., JUDGE
Antonio Williams, pro se appellant.
Rutledge, Att'y Gen., by: Ashley Driver Younger,
Ass't Att'y Gen., for appellee
2013, a jury found appellant Antonio Williams guilty of
capital murder for the death of Kelvin Lott Shelton, and he
was sentenced to life without parole, with an additional
sentence enhancement of eighty-four months' imprisonment
for employing a firearm in commission of the crime. This
court affirmed. Williams v. State, 2014 Ark. 253,
435 S.W.3d 483. Williams filed in the trial court a timely
pro se petition under Arkansas Rule of Criminal Procedure
37.1 (2016). Williams retained counsel, and with the trial
court's permission, counsel amended the petition. After
an evidentiary hearing, the trial court denied the amended
petition, and still represented by counsel, Williams lodged
an appeal in this court. Counsel was relieved, and with
Williams proceeding pro se, the matter has now been briefed.
We affirm the trial court's order denying postconviction
court will not reverse a trial court's decision granting
or denying postconviction relief unless it is clearly
erroneous. Houghton v. State, 2015 Ark. 252, 464
S.W.3d 922; Kemp v. State, 347 Ark. 52, 60
S.W.3d 404 (2001). 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. Turner v. State, 2016 Ark. 96, 486 S.W.3d
Rule 37.1 petition, Williams raised two claims of ineffective
assistance of counsel. He first alleged that trial counsel
failed to call an alibi witness, Daquasha Johnson. In his
second claim, Williams alleged that counsel was ineffective
for allowing the introduction of evidence concerning the
identification of Williams by Torrece Graydon as an
eyewitness to an incident with Shelton leading up to
Shelton's murder. The identification was made prior to
trial from a photo array, and the trial court had suppressed
the evidence on a defense motion.
first claim, the trial court found that counsel was not
ineffective, that Williams's assertion that he was not
present at the scene of the crime was undercut by evidence
introduced at his trial, and that Williams's testimony
that he had told his attorney about Johnson before his trial
during the Rule 37 hearing was not credible. On the second
claim, the trial court found that counsel had attempted to
have both the photo array and any in-court identification by
the eyewitness suppressed; that counsel had testified that,
when the in-court identification was not suppressed, he was
forced to use the photo-array evidence in order to provide
the jury with an explanation for the eyewitness's
in-court identification of Williams, and that, because this
decision to introduce the photo-array evidence was reasonable
trial strategy, counsel was not ineffective.
standard for ineffective-assistance-of-counsel claims is the
two-prong analysis set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Rasul v.
State, 2015 Ark. 118, 458 S.W.3d 722. To prevail on a
claim of ineffective assistance of counsel, the petitioner
must show that (1) counsel's performance was deficient
and (2) the deficient performance prejudiced his defense.
Mister v. State, 2014 Ark. 446. Unless a petitioner
makes both showings, the allegations do not meet the
benchmark on review for granting relief on a claim of
ineffective assistance. Houghton, 2015 Ark. 252, 464
is presumed effective, and allegations without factual
substantiation are insufficient to overcome that presumption.
Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. A
petitioner claiming deficient performance must show that
counsel's representation fell below an objective standard
of reasonableness, and this court must indulge in a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Id. A
petitioner has the burden of overcoming the presumption that
counsel is effective 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.
prevail on a claim of ineffective assistance of counsel, a
petitioner must also show that there is a reasonable
probability that the fact-finder's decision would have
been different absent counsel's alleged errors in order
to meet the second prong of the test. Sales v.
State, 2014 Ark. 384, 441 S.W.3d 883. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. In
assessing prejudice, courts "must consider the totality
of the evidence before the judge or jury."
Rasul, 2015 Ark. 118, at 7, 458 S.W.3d at 727
(quoting Strickland, 466 U.S. at 695).
recitation of some of the evidence at trial is helpful in
understanding the issues presented. Graydon testified that she
and Shelton had gone to meet with someone Shelton had
described to her and called "Big Mike." Shelton
planned to sell him some marijuana. "Big Mike" is
Williams's brother, Michael Williams. Both brothers have
burn scars on their faces from a fire when they were
children. Graydon testified that Shelton had parked behind a
car for the meeting with Big Mike and that, initially, two
men had gotten out of the car and into the backseat of the
Jeep that Shelton was driving. After Shelton showed the men
the marijuana, they went back to the car to get approval for
the purchase. They came back with a third man, who got into
the Jeep's backseat while the other two men stood
outside. The third man placed a gun to Shelton's head and
demanded the drugs. Graydon got out of the Jeep, and she
heard gunshots as she fled. Shelton was found dead in the
Jeep after Graydon had alerted the police. After the
incident, Graydon told the police that the man with the gun
had scars on his face.
appeal, Williams reiterates his claims from the petition and
asserts that the trial court's interpretation of
Strickland was unreasonable. Concerning his first
ineffective-assistance claim, Williams contends that trial
counsel failed to investigate sufficiently to discover
Johnson's testimony. As to the second prong of the
Strickland test, Williams alleges that Johnson would
have testified that Williams was at his house with her at the
time of the crime and his brother was not, that the testimony
would have raised reasonable doubt and discredited
Graydon's testimony, and that he was therefore prejudiced
by counsel's failure to discover and present
Johnson's testimony at trial.
Williams's assertions that there was deficient
performance and prejudice, the trial court's factual
findings support its apparent conclusion that Williams failed
to satisfy either prong of the two-part Strickland
test, and those findings were not clearly erroneous. The
trial court specifically stated that it found not credible
Williams's testimony at the Rule 37 hearing that he had
told his attorney that Johnson could provide alibi testimony.
In rendering its decision, the trial court was not required
to accept ...