APPEAL
FROM THE ARKANSAS COUNTY CIRCUIT COURT, NORTHERN DISTRICT
[NO. 01SCR-15-105] HONORABLE DAVID G. HENRY, JUDGE
Rodney
W. Rayburn, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
Harrison and Murphy, JJ., agree.
RAYMOND R. ABRAMSON, Judge
Following
appellant Rodney Rayburn's conviction of one count of
rape and one count of criminal attempt to commit rape and his
unsuccessful appeal of the judgment, [1] he filed a timely petition
for postconviction relief under Arkansas Rule of Criminal
Procedure 37.1 (2017) in the Arkansas County Circuit Court.
Rayburn now appeals the denial of the petition by the circuit
court, alleging that his trial counsel was ineffective for
several reasons. Because none of Rayburn's claims merit
postconviction relief under the Rule, we affirm.
At
Rayburn's trial, evidence was presented to the jury that
indicated Rayburn had raped his minor daughter, H.R., at
least fifteen times over the course of seven years. He was
sentenced to twenty-five years of imprisonment on the count
of rape and fifteen years on the count of criminal attempt to
commit rape with the sentences to run consecutively. On
direct appeal, he argued the circuit court abused its
discretion when admitting evidence of incidents other than
the ones with which he had been charged, and that the circuit
court's admission of cumulative testimony of prior bad
acts was prejudicial to him and deprived him of a fair trial.
In affirming the circuit court, we held that the evidence
fell within the pedophile exception of Rule 404(b) of the
Arkansas Rules of Evidence and was more probative than
prejudicial. Id. The mandate was issued on April 19,
2018.
Rayburn
largely raises the same arguments on appeal that he raised in
his Rule 37.1 petition, although he significantly expands on
them in his appeal. Rayburn alleges that his trial counsel
was ineffective because he (1) failed to call an expert
witness to rebut the State's expert; (2) failed to
conduct a thorough investigation to support an effective
defense and to discover mitigating evidence; (3) failed to
properly cross-examine the State's witnesses; and (4)
failed to request a change of venue. Without conducting an
evidentiary hearing, the circuit court entered its order
denying Rayburn's petition on July 2, 2018.[2]
When
reviewing a circuit court's ruling on a Rule 37.1
petition, we will not reverse the circuit court's
decision granting or denying postconviction relief unless it
is clearly erroneous. Kemp v. State, 347 Ark. 52,
55, 60 S.W.3d 404, 406 (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. Id.
The
benchmark question to be resolved in 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. Norris v. State, 2013
Ark. 205, 427 S.W.3d 626 (per curiam). A Rule 37
petitioner's ineffective-assistance-of-counsel claims are
analyzed under the two-pronged standard set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984),
which requires a petitioner to show that his counsel's
representation was deficient, and he suffered prejudice as a
result. "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." State v. Barrett, 371 Ark. 91, 96,
263 S.W.3d 542, 546 (2007).
Pursuant
to Strickland and its two-pronged 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, such that counsel committed errors so serious
as to not be functioning as counsel at all. Flores v.
State, 350 Ark. 198, 205-06, 85 S.W.3d 896, 901 (2002).
A court must indulge in a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance. Springs v.
State, 2012 Ark. 87, 387 S.W.3d 143. The burden is on
the petitioner to overcome this presumption by identifying
specific acts or omissions by counsel that could not have
been the result of reasoned professional judgment. Bond
v. State, 2013 Ark. 298, at 7-8, 429 S.W.3d 185, 191-92.
Second,
the petitioner must show that, considering the totality of
the evidence before the fact-finder, counsel's deficient
performance so prejudiced petitioner's defense that he
was deprived of a fair trial. Springs,
supra. 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.
A
petitioner bears the burden of providing sufficient facts to
affirmatively support any claims of ineffective assistance of
counsel. See, e.g., Smith v. State, 2010
Ark. 137, at 12, 361 S.W.3d 840, 848 (per curiam). Thus,
conclusory statements, without more, cannot form the basis of
postconviction relief. Id.; Hooks v. State,
2015 Ark. 258, at 7-8, 465 S.W.3d 416, 421 (per curiam)
("Neither conclusory statements nor allegations without
factual substantiation are sufficient to overcome the
presumption that counsel is effective and cannot provide a
basis for postconviction relief."). Because Rayburn did
not present sufficient facts in his petition or in his
appellate brief to support his
ineffective-assistance-of-counsel claims, Rayburn's
appeal fails under the Strickland standard.
E.g., Feuget v. State, 2015 Ark. 43, at 4,
454 S.W.3d 734, 738 (Unless appellant can satisfy both prongs
of Strickland, he cannot prevail on an
ineffective-assistance-of-counsel claim).
Rayburn's
first claim is that trial counsel was ineffective because he
failed to call an expert witness to rebut the testimony of
the State's expert. As he does throughout his subsequent
claims, Rayburn greatly expands the scope and nature of the
argument presented to the trial court. An appellant in a Rule
37.1 proceeding is limited to the scope and nature of the
arguments made to the trial ...