FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-14-432]
HONORABLE WILLIAM M. PEARSON, JUDGE.
F. Greene, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
WAYMOND M. BROWN, Judge
Dameion Williams appeals from the order of the Pope County
Circuit Court denying his petition for Rule 37 postconviction
relief. He contends that the circuit court erred in failing
to hold an evidentiary hearing on his claims of ineffective
assistance of counsel. We affirm.
was convicted by a jury of aggravated robbery, attempted
murder in the first degree, and battery in the first degree.
He was sentenced to an aggregate term of 35 years'
incarceration in the Arkansas Department of Correction. His
conviction and sentence were affirmed by this court in
Williams v. State, 2017 Ark.App. 198, 517 S.W.3d
446. Williams then filed a petition for postconviction relief
pursuant to Rule 37.1 of the Arkansas Rules of Criminal
Procedure (2017), raising claims of ineffective assistance of
counsel. Without holding an evidentiary hearing, the circuit
court entered an order with written findings denying his
request for postconviction relief. Williams then appealed the
circuit court's denial of his Rule 37 petition. Noting
abstracting deficiencies and citing noncompliance with
Arkansas Supreme Court Rule 4-2(a)(5), we ordered Williams to
file a substituted abstract, brief, and addendum that
complies with our rules.
filed his new brief, correcting the deficiencies in the
abstract as ordered. However, we note that Williams not only
corrected his abstract but also made changes to the argument
portion of his brief, adding a claim that his counsel was
ineffective in regard to the cross-examination of the victim,
Allicia Brown. We will not address the merits of this new
claim for two reasons.
initial matter, Rule 37 provides that all grounds for
postconviction relief must be asserted in the original
petition. Ark. R. Crim. P. 37.2(b); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824. Because we do not consider
issues that are raised for the first time on appeal,
appellant's argument with respect to the
cross-examination of the victim is not preserved for our
review. See Rasul v. State, 2015 Ark. 118, 458
we take the opportunity to note that the changes made to the
argument section of Williams's substituted brief, in
which he added an additional claim for relief, went beyond
the scope of our rebriefing order. In Hall v. State,
the State pointed out that the abstract section of Hall's
brief was deficient. 324 Ark. 431, 921 S.W.2d 929 (per
curiam). In response, Hall sought permission, which the court
granted, to correct the abstract and file a substituted
brief. Id. In his new brief, Hall not only corrected
the abstract but rewrote the argument section, as well.
Id. The State then moved to strike Hall's
substituted brief, or alternatively, asked the court to
consider only Hall's original brief. Id. The
supreme court directed that Hall's appellate brief
properly contained the substituted abstract and the original
argument. Id. Despite the State's failure to
move for such a remedy here, we hold that the same outcome is
proper in the case at bar.
appeal from a trial court's ruling on a petitioner's
request for Rule 37 relief, this court will not reverse the
trial court's decision granting or denying postconviction
relief unless it is clearly erroneous. Hogan v.
State, 2013 Ark. 223. 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
appeal, Williams argues that the circuit court erred in not
holding an evidentiary hearing on his
ineffective-assistance-of-counsel claims. He specifically
contends that his counsel was ineffective (1) for failing to
adequately prepare for trial, (2) for failing to effectually
cross-examine Detective Barker, (3) for failing to obtain a
ruling on his proposed jury instruction, and (4) for
submitting a subpar appellate brief to this court on direct
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 v. Washington, 466 U.S.
668, 104 S.Ct. 2052 (1984). Pursuant to Strickland,
we assess the effectiveness of counsel under a two-prong
standard. First, a petitioner raising a claim of ineffective
assistance must show 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. Williams v. State, 369
Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an
ineffective-assistance-of-counsel claim must show that his
counsel's performance fell below an objective standard of
reasonableness. Abernathy v. State, 2012 Ark. 59,
386 S.W.3d 477 (per curiam). A court must indulge in a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance. Id.
the petitioner must show that counsel's deficient
performance so prejudiced petitioner's defense that he
was deprived of a fair trial. Id. The petitioner
must show there is a reasonable probability that, but for
counsel's errors, the fact-finder would have had a
reasonable doubt respecting guilt, i.e., the decision reached
would have been different absent the errors. Howard v.
State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable
probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. 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.
Additionally, conclusory statements that counsel was
ineffective cannot be the basis of postconviction relief.
Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.
first point on appeal, Williams argues that his trial counsel
provided ineffective assistance because he was inadequately
prepared for trial. Specifically, Williams asserts that
counsel waited until the last minute to subpoena Zach Stokes,
the co- defendant. Williams argues that he expected Stokes to
exonerate him by testifying that while the ...