Rehearing Denied January 15, 2020
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APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO.
60CR-16-1477], HONORABLE HERBERT T. WRIGHT, JR., JUDGE
Roscoe
Fletcher, Jr., pro se appellant.
Leslie
Rutledge, Atty Gen., by: Rebecca Kane, Asst Atty Gen., for
appellee.
OPINION
BART F.
VIRDEN, Judge
Appellant Roscoe Fletcher[1] appeals from the Pulaski County
Circuit Courts denial of his petition for postconviction
relief pursuant to Ark. R. Crim. P. 37.1. Fletcher raises two
points on appeal: (1) the trial court erred in failing to
find that trial counsel was ineffective when she failed to
investigate alibi witnesses, failed to put on an alibi
defense, and failed to call alibi witnesses to testify at
trial; and (2) the trial court erred when it abruptly moved
the date of his evidentiary hearing and would not allow him
sufficient time to put a witness on notice so she could
attend and testify at the hearing. We affirm the denial of
postconviction relief.
I.
Ineffective Assistance of Counsel
In an
appeal from a trial courts denial of a petition for
postconviction relief under Rule 37.1, the sole question
presented is whether, based on the totality of the evidence,
the trial court clearly erred in holding that counsels
performance was not ineffective under the standard set forth
in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Under the two-prong
Strickland test, a petitioner raising a claim of
ineffective assistance of counsel must first show that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed by the
Sixth Amendment. Bond v. State, 2013 Ark. 298, 429
S.W.3d 185. The petitioner must also show that counsels
performance fell below an objective standard of
reasonableness. Id. There is a strong presumption
that trial counsels conduct falls within the wide range of
reasonable professional assistance. Noel v. State,
342 Ark. 35, 26 S.W.3d 123 (2000). The appellant has the
burden of overcoming that presumption by identifying the acts
and omissions of trial counsel, which, when viewed from
counsels perspective at the time of trial, could not have
been the result of reasonable professional judgment.
Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446.
With
respect to the second prong of the Strickland test,
the petitioner must show that counsels deficient performance
so prejudiced his defense that he was deprived of a fair
trial. Holloway v. State,2013 Ark. 140, 426 S.W.3d
462. Such a showing requires that the petitioner ...