APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION
[NO. 60CR-12-622] HONORABLE J. LEON JOHNSON, JUDGE.
Gordon, pro se appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
KARENR. BAKER, Associate Justice
Ivor Gordon appeals from the denial of his pro se petition
for postconviction relief filed pursuant to Arkansas Rule of
Criminal Procedure 37.1 (2016), which alleged the following
grounds for relief: (1) that his trial counsel failed to seek
suppression of Gordon's custodial statement; (2) that
trial counsel was ineffective for failing to conduct an
adequate pretrial investigation; (3) that trial counsel
failed to interview witnesses, "allege codefendants,
" and investigate all statements and notes that were a
part of the record or discovery, i.e., counsel failed to
investigate Gordon's only possible defense; (4) that
trial counsel was ineffective for failing to call or
interview Danny Brown, Quentin Jones, or T. Brown; (5) that
trial counsel failed to "properly introduce Mr. Jones to
the jury as a witness in the case against [ ] Gordon[,
]" although Jones was alluded to several times during
the trial; (6) that trial counsel was ineffective for making
remarks during voir dire, counsel was "fact
qualifying" for the jury, and trial counsel showed
hostility toward Gordon's "case in chief during
[v]oir [d]ire"; (7) and that trial counsel was
ineffective for failing to object to improper jury
instructions. The trial court denied the petition without an
evidentiary hearing, noting that the record demonstrated that
the petition failed to allege explicit grounds for
postconviction relief. We affirm.
court reviews the trial court's decision on Rule 37.1
petitions for clear error. Russell v. State, 2017
Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous
when, although there is evidence to support it, the appellate
court, after reviewing the totality of the evidence, is left
with the definite and firm conviction that a mistake has been
committed. Polivka v. State, 2010 Ark. 152, 362
was convicted of capital murder and criminal attempt to
commit capital murder, for which he was sentenced as a
habitual offender to life imprisonment without parole and
life imprisonment, respectively, with enhancements for using
a firearm and committing the offenses in the presence of a
child. Gordon v. State, 2015 Ark. 344, 470 S.W.3d
673. His attorney, Patrick Benca, filed a no-merit brief
pursuant to Arkansas Supreme Court Rule 4-3(k) and Anders
v. California, 386 U.S. 738 (1967), asserting no
nonfrivolous issues for appeal, as well as filing a motion to
withdraw as counsel. Gordon filed pro se points for reversal.
After the State responded and certified that all adverse
rulings were included in appellant's brief and stated
that there were no other issues that involved potentially
prejudicial error to Gordon, we reviewed the record, briefs,
and pro se points, and affirmed the convictions and granted
counsel's motion to withdraw. Gordon, 2015 Ark.
344, 470 S.W.3d 673.
evidence presented at trial, briefly summarized, included
that this was a murder-for-hire case. According to
Gordon's statement to police, Gordon was hired by Danny
Brown to kill Edwina Martin, Brown's ex-girlfriend and
mother of his children.Gordon and Quentin Jones,  waited for Martin
outside her mother's apartment, and when Martin and her
boyfriend, Daniel Hill, arrived, Gordon and Jones followed
them into the apartment, where Martin's mother and
ten-year-old nephew were present. Once inside, Gordon shot
Martin, at which point Hill tackled Gordon and took the gun
away. Jones then shot Hill in the head. Hill died and Martin
survived gunshot wounds to her chest and hip. Gordon was paid
$250 before the shooting and was to later receive a 2002
Chevrolet Suburban and an additional $220. Walmart
video-surveillance cameras and phone records confirmed that
Gordon had been in contact with Brown. Both Martin and her
nephew identified Gordon from photographic lineups as the
shooter. Trial counsel's defense strategy "was to
convince the jury that Gordon was not guilty of capital
murder but, instead, of first- or second-degree murder."
Gordon, 2015 Ark. 344, at 3, 470 S.W.3d at 675.
Assistance of Counsel
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. The benchmark for
judging a claim of ineffective assistance of counsel must be
"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. 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. Van
Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. 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 v. State, 2015 Ark.
252, 464 S.W.3d 922.
satisfy the first prong of the Strickland test, the
petitioner must show that counsel's performance was
deficient by a showing that counsel made errors so serious
that counsel was not functioning as the "counsel"
guaranteed the petitioner by the Sixth Amendment to the
United States Constitution. Van Winkle, 2016 Ark.
98, 486 S.W.3d 778. Counsel 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 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.
satisfy the second prong of the test, a claimant must show
that there is a reasonable probability that the
fact-finder's decision would have been different absent
counsel's errors. Van Winkle, 2016 Ark. 98, 486
S.W.3d 778. 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 ...