Cite as 2014 Ark. 127
SUPREME COURT OF ARKANSAS No. CR-12-513
Opinion Delivered March 20, 2014 NEHEMIAH E. ARMSTRONG PRO SE APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT [NO. 60CR- 10-1288] v. HONORABLE HERBERT T. WRIGHT, STATE OF ARKANSAS JR., JUDGE APPELLEE AFFIRMED.
PER CURIAM
In 2010, appellant Nehemiah E. Armstrong was found guilty by a jury of committing two
counts of Class Y felony terroristic acts, four counts of Class B felony terroristic acts, and two
counts of battery in the first degree. An aggregate sentence of 672 months’ imprisonment was
imposed. The Arkansas Court of Appeals affirmed. Armstrong v. State, 2011 Ark. App. 530.
Appellant subsequently filed in the trial court a timely, verified pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The trial
court denied the petition without a hearing, and appellant brings this appeal. Appellant’s sole
argument on appeal is that it was error for the trial court to deny the petition without a hearing.
This court has held that it will reverse a decision granting or denying postconviction relief
only when that decision is clearly erroneous. Lemaster v. State, 2013 Ark. 449 (per curiam);
Pankau v. State, 2013 Ark. 162; Banks v. State, 2013 Ark. 147. 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. Sartin v. State,
2012 Ark. 155, 400 S.W.3d 694; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). We Cite as 2014 Ark. 127
affirm the trial court’s order.
In his petition, appellant contended that his attorney was ineffective because counsel did
not do the following: make proper arguments; present a defense and call the right witnesses;
employ sound trial strategy; present evidence in the form of the affidavits of Corinthian Parker
and Donell White that would have established that he was not at the scene of the crimes; did not
sufficiently cross-examine the State’s primary witness, Dominique Givens, and two detectives.
The trial court addressed the allegations in its order, setting out those parts of the record that
supported its conclusion that appellant had not stated a ground to grant relief under Rule 37.1.
An allegation of ineffective assistance of counsel is assessed, taking into consideration
the totality of the evidence against the petitioner, under the standard set forth by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Craigg v. State, 2014 Ark.
71 (per curiam). Under the two-prong Strickland test, a petitioner raising a claim of ineffective
assistance must first 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. Adams v. State, 2013 Ark. 174, ___ S.W.3d ___. There is a strong presumption
that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and
an appellant 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. Henington v. State, 2012
Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam).
With respect to the second prong of Strickland, the claimant must demonstrate that
2 Cite as 2014 Ark. 127
counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was
deprived of a fair trial. Thompson v. State, 2013 Ark. 179 (per curiam). Such a showing requires
that the petitioner demonstrate a reasonable probability that the fact-finder’s decision would
have been different absent counsel’s errors. Boatright v. State, 2014 Ark. 66 (per curiam). A
reasonable probability is a probability sufficient to undermine confidence in the outcome of the
trial. Id.
Here, the trial court explained its rulings on the allegations of ineffective assistance of
counsel in its order, and we cannot say, based on the Strickland standard, that the trial court erred
in denying the relief sought without holding a hearing. Arkansas Rule of Criminal Procedure
37.3 (2010) provides that an evidentiary hearing should be held in a postconviction proceeding
unless the files and record of the case conclusively show that the prisoner is entitled to no relief.
Lemaster, 2013 Ark. 449; Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State, 2011 Ark. 327,
383 S.W.3d 824 (per curiam). When it dismisses a Rule 37.1 petition without an evidentiary
hearing, the trial court “shall make written findings to that effect, specifying any parts of the
files, or records that are relied upon to sustain the court’s findings.” Ark. R. Crim. P. 37.3(a);
see Eason, 2011 Ark. 352. As stated, in this case, the trial court made the requisite written
findings by addressing the claims raised in the Rule 37.1 petition.
Appellant argues in his brief that a hearing would have allowed him to present his
evidence in support of the Rule 37.1 petition, and that it was unjust to deny the petition without
a full hearing of the evidence. There is, however, no requirement that a hearing be held where
the court can refer to the record and settle the claims raised. Eason, 2011 Ark. 352. When a trial
3 Cite as 2014 Ark. 127
court has made the requisite written findings under Rule 37.3 that an appellant was not entitled
to relief, and appellant fails to establish that his claim for relief warranted an evidentiary hearing,
there is no basis to remand for an evidentiary hearing. See Garcia v. State, 2013 Ark. 405 (per
curiam). To the extent that appellant is arguing that he should have been allowed to go beyond
the petition and bolster his allegations by means of a hearing, the argument is not well taken.
The strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere
possibility that an evidentiary hearing might produce evidence to support an allegation contained
in a petition for postconviction relief. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989);
see also Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999).
With respect to appellant’s claim that his attorney was ineffective for failing to have the
affidavits of Corinthian Parker and Donell White introduced at trial to establish that he was not
guilty, appellant does not argue on appeal that either Parker or White would have agreed to
testify for the defense, and the trial court in its order noted that appellant failed to establish in
the Rule 37.1 petition that either man would have testified for the defense. The trial court
further found that the affidavits alone would not have been admissible as evidence at trial.
When it is asserted that counsel was ineffective for failure to take a particular action at trial, the
onus is on the petitioner to show that there was merit to the action. Failure to make an
argument that is meritless is not ineffective assistance of counsel.
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Cite as 2014 Ark. 127
SUPREME COURT OF ARKANSAS No. CR-12-513
Opinion Delivered March 20, 2014 NEHEMIAH E. ARMSTRONG PRO SE APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT [NO. 60CR- 10-1288] v. HONORABLE HERBERT T. WRIGHT, STATE OF ARKANSAS JR., JUDGE APPELLEE AFFIRMED.
PER CURIAM
In 2010, appellant Nehemiah E. Armstrong was found guilty by a jury of committing two
counts of Class Y felony terroristic acts, four counts of Class B felony terroristic acts, and two
counts of battery in the first degree. An aggregate sentence of 672 months’ imprisonment was
imposed. The Arkansas Court of Appeals affirmed. Armstrong v. State, 2011 Ark. App. 530.
Appellant subsequently filed in the trial court a timely, verified pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The trial
court denied the petition without a hearing, and appellant brings this appeal. Appellant’s sole
argument on appeal is that it was error for the trial court to deny the petition without a hearing.
This court has held that it will reverse a decision granting or denying postconviction relief
only when that decision is clearly erroneous. Lemaster v. State, 2013 Ark. 449 (per curiam);
Pankau v. State, 2013 Ark. 162; Banks v. State, 2013 Ark. 147. 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. Sartin v. State,
2012 Ark. 155, 400 S.W.3d 694; Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). We Cite as 2014 Ark. 127
affirm the trial court’s order.
In his petition, appellant contended that his attorney was ineffective because counsel did
not do the following: make proper arguments; present a defense and call the right witnesses;
employ sound trial strategy; present evidence in the form of the affidavits of Corinthian Parker
and Donell White that would have established that he was not at the scene of the crimes; did not
sufficiently cross-examine the State’s primary witness, Dominique Givens, and two detectives.
The trial court addressed the allegations in its order, setting out those parts of the record that
supported its conclusion that appellant had not stated a ground to grant relief under Rule 37.1.
An allegation of ineffective assistance of counsel is assessed, taking into consideration
the totality of the evidence against the petitioner, under the standard set forth by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Craigg v. State, 2014 Ark.
71 (per curiam). Under the two-prong Strickland test, a petitioner raising a claim of ineffective
assistance must first 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. Adams v. State, 2013 Ark. 174, ___ S.W.3d ___. There is a strong presumption
that trial counsel’s conduct falls within the wide range of reasonable professional assistance, and
an appellant 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. Henington v. State, 2012
Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam).
With respect to the second prong of Strickland, the claimant must demonstrate that
2 Cite as 2014 Ark. 127
counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was
deprived of a fair trial. Thompson v. State, 2013 Ark. 179 (per curiam). Such a showing requires
that the petitioner demonstrate a reasonable probability that the fact-finder’s decision would
have been different absent counsel’s errors. Boatright v. State, 2014 Ark. 66 (per curiam). A
reasonable probability is a probability sufficient to undermine confidence in the outcome of the
trial. Id.
Here, the trial court explained its rulings on the allegations of ineffective assistance of
counsel in its order, and we cannot say, based on the Strickland standard, that the trial court erred
in denying the relief sought without holding a hearing. Arkansas Rule of Criminal Procedure
37.3 (2010) provides that an evidentiary hearing should be held in a postconviction proceeding
unless the files and record of the case conclusively show that the prisoner is entitled to no relief.
Lemaster, 2013 Ark. 449; Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State, 2011 Ark. 327,
383 S.W.3d 824 (per curiam). When it dismisses a Rule 37.1 petition without an evidentiary
hearing, the trial court “shall make written findings to that effect, specifying any parts of the
files, or records that are relied upon to sustain the court’s findings.” Ark. R. Crim. P. 37.3(a);
see Eason, 2011 Ark. 352. As stated, in this case, the trial court made the requisite written
findings by addressing the claims raised in the Rule 37.1 petition.
Appellant argues in his brief that a hearing would have allowed him to present his
evidence in support of the Rule 37.1 petition, and that it was unjust to deny the petition without
a full hearing of the evidence. There is, however, no requirement that a hearing be held where
the court can refer to the record and settle the claims raised. Eason, 2011 Ark. 352. When a trial
3 Cite as 2014 Ark. 127
court has made the requisite written findings under Rule 37.3 that an appellant was not entitled
to relief, and appellant fails to establish that his claim for relief warranted an evidentiary hearing,
there is no basis to remand for an evidentiary hearing. See Garcia v. State, 2013 Ark. 405 (per
curiam). To the extent that appellant is arguing that he should have been allowed to go beyond
the petition and bolster his allegations by means of a hearing, the argument is not well taken.
The strong presumption in favor of counsel’s effectiveness cannot be overcome by a mere
possibility that an evidentiary hearing might produce evidence to support an allegation contained
in a petition for postconviction relief. See Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989);
see also Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999).
With respect to appellant’s claim that his attorney was ineffective for failing to have the
affidavits of Corinthian Parker and Donell White introduced at trial to establish that he was not
guilty, appellant does not argue on appeal that either Parker or White would have agreed to
testify for the defense, and the trial court in its order noted that appellant failed to establish in
the Rule 37.1 petition that either man would have testified for the defense. The trial court
further found that the affidavits alone would not have been admissible as evidence at trial.
When it is asserted that counsel was ineffective for failure to take a particular action at trial, the
onus is on the petitioner to show that there was merit to the action. Failure to make an
argument that is meritless is not ineffective assistance of counsel. Mitchell v. State, 2012 Ark.
242; see also Woody v. State, 2009 Ark. 413.
As to the claims of trial error contained in the Rule 37.1 petition, those claims were not
cognizable in a Rule 37.1 proceeding. Claims of mere trial error that could have been addressed
4 Cite as 2014 Ark. 127
at trial, and, if appropriate, on the record on direct appeal are not grounds for relief under Rule
37.1. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987) (per curiam). Rule 37.1 is not a
means to challenge the admissibility or the sufficiency of evidence. See Jackson v. State, 2013 Ark.
19 (per curiam); see also Watson v. State, 2012 Ark. 27 (per curiam) (assertions of trial error, even
those of constitutional dimension, must be raised at trial and on appeal); Robertson v. State, 2010
Ark. 300, 367 S.W.3d 538 (per curiam) (allegations of trial error that could have been raised at
trial or on appeal may not be raised in Rule 37.1 proceedings).
Affirmed.
Nehemiah E. Armstrong, pro se appellant.
Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.