APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-16-454]
HONORABLE BRENT HALTOM, JUDGE
James
Earnest Duff, pro se appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
BART
F. VIRDEN, JUDGE
James
Ernest Duff appeals pro se from the Miller County Circuit
Court decision denying his petition for Rule 37
postconviction relief. On appeal, he argues that the circuit
court lacked subject-matter jurisdiction over his criminal
trial, that the circuit court erred in denying his request
for a hearing, and that counsel was ineffective. We affirm.
I.
Relevant Facts
Duff
was convicted by a Miller County Circuit Court jury of being
a felon in possession of a firearm. Our court affirmed his
conviction on direct appeal. Duff v. State, 2018
Ark.App. 112, 540 S.W.3d 738. In his criminal appeal, Duff
argued that the circuit court erred by overruling his
chain-of-custody objection regarding the firearm offered at
his trial as evidence of the charge of felon in possession of
a firearm. Duff admitted being a felon. The firearm was not
in its original evidentiary packaging; however, the serial
number on the gun presented to the jury at his trial was the
same as the serial number of the gun taken from his car on
his arrest. Our court held that the circuit court did not
abuse its discretion in overruling his objection and affirmed
Duff's conviction. Id. at 4, 540 S.W.3d at 741.
In his appeal, we also affirmed the circuit court's
determination that there was probable cause for the traffic
stop that led to Duff's arrest. Id. at 6, 540
S.W.3d at 742. The mandate was issued on March 6, 2018, On
May 7, 2018, Duff timely filed a petition for Rule 37 relief
for ineffective assistance of counsel, and he requested a
hearing and that he be provided a "complete
record." In his petition, Duff argued that the circuit
court lacked subject-matter jurisdiction because there was no
evidence offered at his trial that the charged crime had been
committed. Duff also claimed that counsel was ineffective
because of an "actual conflict" that existed
between him and his attorneys; specifically, Duff argued that
his first attorney, David Anderson, supplied the prosecution
with privileged information and that he forged Duff's
signature on a request for a continuance. Duff asserted that
subsequent counsel, Jason Mitchell, failed to inform the
court of Anderson's misconduct. Mitchell then
"silenced" Duff "via order by the court."
Duff claimed that he was denied "counsel of his
choice" and that the conflict between him and his
appointed counsel was serious enough to constitute
ineffective assistance of counsel.
On May
11, 2018, the circuit court denied Duff's Rule 37
petition without a hearing. In the order, the court found
that it had subject-matter jurisdiction over the case because
Duff was a defendant in the Miller County Circuit Court for
alleged offenses committed in Miller County. Furthermore, the
court noted that Duff's allegation that no firearm was
produced for his trial was incorrect and that Duff had merely
reiterated his argument regarding the sufficiency of the
evidence against him. The circuit court found that
"nothing about the firearm or its admissibility at trial
touches on his trial counsel to be ineffective." The
circuit court found that Duff's claims of ineffective
assistance of counsel were also without merit. The circuit
court stated that it would address only Duff's claims
against his trial counsel, Jason Mitchell, because Anderson
had been relieved as counsel before the trial. The court
noted that Mitchell was able to obtain a not-guilty verdict
on one charge against Duff and that another charge was nolle
prossed. The court found that Mitchell had been very
effective as trial counsel and that counsel met all
constitutional standards.
Regarding
Duff's request for a transcript and for the
"complete record," the circuit court found that
Duff already possessed what he requested and that a complete
record was already available to him. The court denied
Duff's request for an evidentiary hearing, finding that
Duff had not raised any issue of fact requiring further
determination by the court. Duff filed a timely notice of
appeal.
II.
Analysis
On
appeal, Duff argues that the circuit court lacked
subject-matter jurisdiction over his trial, that the circuit
court erred by denying his request for a hearing, that the
circuit court failed to make written findings, and that
counsel was ineffective due to a conflict with Duff. We
disagree and affirm.
We do
not reverse the denial of postconviction relief unless the
circuit court's findings are clearly erroneous.
Johnson v. State, 2018 Ark. 6, at 2, 534 S.W.3d 143,
146. A finding is clearly erroneous when the appellate court,
after reviewing the entire evidence, is left with the
definite and firm conviction that the circuit court made a
mistake. Id.
When
considering an appeal from a circuit court's denial of a
Rule 37.1 petition based on ineffective assistance of
counsel, the sole question presented is whether, based on a
totality of the evidence under the standard set forth by the
United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984), the circuit court
clearly erred in holding that counsel's performance was
not ineffective. Taylor v. State, 2013 Ark. 146, at
5, 427 S.W.3d 29, 32. Under Strickland, the
effectiveness of counsel is assessed by a two-prong standard.
First, Duff 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, 108,
251 S.W.3d 290, 292-93 (2007). In order to demonstrate
counsel error, a petitioner must show that counsel's
performance fell below an objective standard of
reasonableness. Abernathy v. State, 2012 Ark. 59, at
4, 386 S.W.3d 477, 481 (per curiam). Furthermore, there is a
strong presumption that trial counsel's conduct falls
within the wide range of reasonable professional assistance,
and a petitioner has the burden of overcoming this
presumption by identifying specific acts or omissions of
trial counsel, which, when viewed from counsel's
perspective at the time of the trial, could not have been the
result of reasonable professional judgment. Bryant v.
State, 2013 Ark. 305, at 2, 429 S.W.3d 193, 196 (per
curiam).
The
second prong of our analysis requires a petitioner to show
that counsel's deficient performance so prejudiced the
defense that the petitioner was deprived of a fair trial.
Holloway v. State, 2013 Ark. 140, at 5, 426 S.W.3d
462, 467. Consequently, Duff must show that 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. Breeden v. State, 2014 Ark. 159,
at 2, 432 S.W.3d 618, 622 (per curiam). A reasonable
probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id.
Conclusory ...