Alford v. State

2014 Ark. 43

• Court: Supreme Court of Arkansas
• Decided: January 30, 2014
• Docket: CR-86-114
• Status: Published

Opinion

Cite as 2014 Ark. 43

SUPREME COURT OF ARKANSAS No. CR-86-114

Opinion Delivered January 30, 2014

RICHARD ALFORD PRO SE PETITION TO REINVEST PETITIONER JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION v. FOR POSTCONVICTION RELIEF PURSUANT TO ARKANSAS RULE OF STATE OF ARKANSAS CRIMINAL PROCEDURE 37.1 AND RESPONDENT MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF BENTON COUNTY, 04CR-85-205]

PETITION DISMISSED; MOTION DENIED.

PER CURIAM

In 1985, petitioner Richard Alford was found guilty by a jury of murder in the first degree

and sentenced to life imprisonment. We affirmed. Alford v. State, 291 Ark. 243, 724 S.W.2d 151

(1987). In 1987, petitioner filed in this court a petition to proceed in the trial court with a

petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1985)

that was denied. Alford v. State, CR-86-114 (Ark. Mar. 27, 1987) (unpublished per curiam).

Now before us is petitioner’s second petition to reinvest jurisdiction in the trial court to

consider a petition under the version of Arkansas Rule of Criminal Procedure 37.1 in effect

when he became eligible to file a petition.1 He has also filed a motion seeking appointment of

counsel. The motion for appointment of counsel is denied inasmuch as there is no ground

1 The petition was filed under the docket number assigned to the direct appeal of the judgment when it was lodged in this court in 1986. Cite as 2014 Ark. 43

stated in the petition that warrants postconviction relief, and the petition is subject to dismissal

as an unauthorized second petition.

Rule 37, as it applied to petitioners with judgments entered before July 1, 1989, that had

been affirmed on appeal, requires the petitioner to obtain leave from this court before filing a

postconviction petition in the trial court.2 Rule 37.2, as it applies to petitioner, provides that a

petition under the Rule is untimely if not filed within three years of the date of commitment

unless the petitioner states some ground for relief which, if found meritorious, would render the

judgment of conviction absolutely void, i.e., a complete nullity. Travis v. State, 286 Ark. 26, 688

S.W.2d 935 (1985); Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (per curiam), cert. denied, 452

U.S. 973 (1981). Trial error, even error of constitutional dimension, is not sufficient to warrant

granting relief under Rule 37.2 if the issue was raised, or could have been raised, at trial and on

the record on appeal. Halfacre v. State, 2010 Ark. 377 (per curiam); Taylor v. State, 297 Ark. 627,

764 S.W.2d 447 (1989) (per curiam). A claim of ineffective assistance of counsel does not entitle

the petitioner to postconviction relief as such a claim does not in itself render the judgment a

complete nullity. See Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982) (per curiam). The

burden is on the petitioner to establish that there is a ground sufficient to void the judgment of

conviction. Travis, 286 Ark. 26, 688 S.W.2d 935.

2 Arkansas Rule of Criminal Procedure 37 was abolished by this court effective July 1, 1989. In re Abolishment of Rule 37 & the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. App’x 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In re Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. App’x 746, 797 S.W.2d 458 (1990). The revised rule does not require petitioners who were convicted after the reinstatement of Rule 37 to gain leave of this court before proceeding in the trial court.

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Petitioner here contends that he is entitled to postconviction relief on the grounds that

he was denied effective assistance of counsel, he was denied due process of law, and the jury was

not properly instructed. As stated, petitioner’s claims of ineffective assistance of counsel are not

sufficient to render a judgment of conviction absolutely void. See Munnerlyn v. State, 2013 Ark.

339 (per curiam).

Petitioner’s allegation that he was denied due process of law is conclusory; that is, it

entirely lacks factual substantiation from which it could be determined that petitioner was denied

some fundamental right. Conclusory claims are not a ground for relief under Rule 37.1. Green

v. State, 2013 Ark. 452 (per curiam).

Petitioner’s remaining grounds for relief are assertions of mere trial error. Such issues

could have been raised at trial and are not a claim sufficient, if proven, to void the judgment

absolutely. Halfacre, 2010 Ark. 377.

Finally, petitioner acknowledges that the instant petition is the second request filed in this

court seeking Rule 37.1 relief pertaining to the criminal case at issue and urges this court to

consider it, nevertheless. Under the applicable provision of the Rule, petitioner was required to

raise all issues for postconviction relief in the original petition unless that petition was denied

without prejudice. Ark. R. Crim. P. 37.2(b) (1985); Ruiz v. State, 280 Ark. 190, 655 S.W.2d 441

(1983) (per curiam). When petitioner’s original petition filed in this court in 1987 was denied,

he was not given permission to file a subsequent petition. Petitioner was therefore not allowed

by the Rule to file another petition under the Rule, and the instant petition is subject to dismissal

on that basis. See Moss v. State, 2013 Ark. 512 (per curiam). Petitioner argues that this court

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should allow a second petition because his attorney filed the original petition without his

approval and it was not complete. We are not persuaded to permit a second petition here. The

allegations raised in the petition are clearly insufficient to render the judgment a nullity, and the

petition does not establish any good cause to permit a second petition.

Richard Alford, pro se petitioner.

Dustin McDaniel, Att’y Gen., by: David R. Raupp, Senior Ass’t Att’y Gen., for respondent..