Cite as 2013 Ark. 453
SUPREME COURT OF ARKANSAS No. CR-12-631
Opinion Delivered November 7, 2013
ROBERT PRESTON CLAYTON PRO SE MOTION FOR EXTENSION APPELLANT OF TIME TO FILE BRIEF [ARKANSAS COUNTY CIRCUIT v. COURT, NORTHERN DISTRICT, 01CR-09-11, HON. DAVID G. STATE OF ARKANSAS HENRY, JUDGE] APPELLEE
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 2010, appellant Robert Preston Clayton was found guilty by a jury in the Arkansas
County Circuit Court, Northern District, of rape and second-degree sexual assault of his
minor daughter. He was sentenced as a habitual offender to an aggregate term of 960 months’
imprisonment. The Arkansas Court of Appeals affirmed. Clayton v. State, 2012 Ark. App.
199. Appellant subsequently filed in the circuit court a timely pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The
circuit court denied appellant’s petition without a hearing, and appellant timely lodged an
appeal from the order.1
1 Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1 petition without an evidentiary hearing, it “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. In the instant case, the circuit court’s order denying Cite as 2013 Ark. 453
Now before us is appellant’s motion for extension of time to file a brief. Because it is
clear from the record that appellant could not prevail on appeal, we dismiss the appeal, and
the motion is therefore moot. An appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward where it is clear that the appellant
could not prevail. Denson v. State, 2013 Ark. 209 (per curiam); Roberson v. State, 2013 Ark.
75 (per curiam).
In an appeal from a circuit court’s denial of a petition for postconviction relief under
Rule 37.1 based on claims of ineffective assistance of counsel, the sole question presented is
whether, based on the totality of the evidence, the circuit court clearly erred in holding that
counsel’s performance was not ineffective under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Hickey v. State, 2013 Ark. 237, ___ S.W.3d ___ (per
curiam). 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 the petitioner by the Sixth Amendment to the
United States Constitution. Id. A petitioner making an ineffective-assistance-of-counsel
claim must show that counsel’s performance fell below an objective standard of
reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the
petitioner must overcome a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
The petitioner has the burden of overcoming the presumption by identifying specific acts and
postconviction relief complies with the requirements of Rule 37.3.
2 Cite as 2013 Ark. 453
omissions that, when viewed from counsel’s perspective at the time of trial, could not have
been the result of reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per
curiam).
With respect to the second prong of the test, the petitioner must show that counsel’s
deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair
trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. 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. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 278 (per
curiam). A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Id. The burden is entirely on a petitioner in a Rule 37.1 proceeding to
provide facts that affirmatively support a claim of prejudice. Thompson, 2013 Ark. 179.
Conclusory statements cannot be the basis of postconviction relief. Id. Unless a petitioner
makes both showings, it cannot be said that the conviction resulted from a breakdown in the
adversarial process rendering the result unreliable. Springs v. State, 2012 Ark. 87, 387 S.W.3d
143. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to
address both components of the Strickland standard if the petitioner makes an insufficient
showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697).
Appellant alleged in his Rule 37.1 petition that counsel was ineffective in failing to
challenge the constitutionality of Arkansas’s rape-shield statute, codified at Arkansas Code
Annotated section 16-42-101 (Repl. 1999), on the ground that the statute’s proscription of
certain types of evidence in sex-crime cases violates the separation-of-powers doctrine.
3 Cite as 2013 Ark. 453
Appellant also alleged that counsel was ineffective in failing to move to sever the charges of
rape and second-degree sexual assault on the ground that the charges “were joined solely on
the basis that they involved similar conduct.”
A petitioner seeking postconviction relief on a claim of ineffective assistance that is
based on the failure of counsel to make a motion or objection must show that counsel could
have made a successful argument in order to demonstrate the prejudice required under the
Strickland test. Hogan v. State, 2013 Ark. 223 (per curiam) (citing Lowe v. State, 2012 Ark.
185, ___ S.W.3d ___ (per curiam)). Failure to make a meritless objection or motion does not
constitute ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871
(2004).
The constitutional challenge to the rape-shield statute, which appellant contended
counsel should have made, would not have succeeded. A similar challenge was made in
Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534, where we explained that the rape-shield
statute survives challenges under the separation-of-powers doctrine by granting wide
discretion to the circuit judge and by not placing a total bar on the admissibility of certain
kinds of evidence. Nelson, 2011 Ark. 429, at 7, 384 S.W.3d at 538; see also M.M. v. State, 350
Ark. 328, 88 S.W.3d 406 (2002) (citing Sera v. State, 341 Ark. 415, 443, 17 S.W.3d 61, 78
(2000) (“We do not view the statute as having supplanted this court’s rulemaking power and
ability to control the courts.”)).
Likewise, appellant failed to demonstrate in his petition that counsel could have
4 Cite as 2013 Ark. 453
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Cite as 2013 Ark. 453
SUPREME COURT OF ARKANSAS No. CR-12-631
Opinion Delivered November 7, 2013
ROBERT PRESTON CLAYTON PRO SE MOTION FOR EXTENSION APPELLANT OF TIME TO FILE BRIEF [ARKANSAS COUNTY CIRCUIT v. COURT, NORTHERN DISTRICT, 01CR-09-11, HON. DAVID G. STATE OF ARKANSAS HENRY, JUDGE] APPELLEE
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 2010, appellant Robert Preston Clayton was found guilty by a jury in the Arkansas
County Circuit Court, Northern District, of rape and second-degree sexual assault of his
minor daughter. He was sentenced as a habitual offender to an aggregate term of 960 months’
imprisonment. The Arkansas Court of Appeals affirmed. Clayton v. State, 2012 Ark. App.
199. Appellant subsequently filed in the circuit court a timely pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The
circuit court denied appellant’s petition without a hearing, and appellant timely lodged an
appeal from the order.1
1 Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should be held in postconviction proceedings unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1 petition without an evidentiary hearing, it “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. In the instant case, the circuit court’s order denying Cite as 2013 Ark. 453
Now before us is appellant’s motion for extension of time to file a brief. Because it is
clear from the record that appellant could not prevail on appeal, we dismiss the appeal, and
the motion is therefore moot. An appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward where it is clear that the appellant
could not prevail. Denson v. State, 2013 Ark. 209 (per curiam); Roberson v. State, 2013 Ark.
75 (per curiam).
In an appeal from a circuit court’s denial of a petition for postconviction relief under
Rule 37.1 based on claims of ineffective assistance of counsel, the sole question presented is
whether, based on the totality of the evidence, the circuit court clearly erred in holding that
counsel’s performance was not ineffective under the standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Hickey v. State, 2013 Ark. 237, ___ S.W.3d ___ (per
curiam). 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 the petitioner by the Sixth Amendment to the
United States Constitution. Id. A petitioner making an ineffective-assistance-of-counsel
claim must show that counsel’s performance fell below an objective standard of
reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the
petitioner must overcome a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.
The petitioner has the burden of overcoming the presumption by identifying specific acts and
postconviction relief complies with the requirements of Rule 37.3.
2 Cite as 2013 Ark. 453
omissions that, when viewed from counsel’s perspective at the time of trial, could not have
been the result of reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per
curiam).
With respect to the second prong of the test, the petitioner must show that counsel’s
deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair
trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. 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. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 278 (per
curiam). A reasonable probability is a probability sufficient to undermine confidence in the
outcome of the trial. Id. The burden is entirely on a petitioner in a Rule 37.1 proceeding to
provide facts that affirmatively support a claim of prejudice. Thompson, 2013 Ark. 179.
Conclusory statements cannot be the basis of postconviction relief. Id. Unless a petitioner
makes both showings, it cannot be said that the conviction resulted from a breakdown in the
adversarial process rendering the result unreliable. Springs v. State, 2012 Ark. 87, 387 S.W.3d
143. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to
address both components of the Strickland standard if the petitioner makes an insufficient
showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697).
Appellant alleged in his Rule 37.1 petition that counsel was ineffective in failing to
challenge the constitutionality of Arkansas’s rape-shield statute, codified at Arkansas Code
Annotated section 16-42-101 (Repl. 1999), on the ground that the statute’s proscription of
certain types of evidence in sex-crime cases violates the separation-of-powers doctrine.
3 Cite as 2013 Ark. 453
Appellant also alleged that counsel was ineffective in failing to move to sever the charges of
rape and second-degree sexual assault on the ground that the charges “were joined solely on
the basis that they involved similar conduct.”
A petitioner seeking postconviction relief on a claim of ineffective assistance that is
based on the failure of counsel to make a motion or objection must show that counsel could
have made a successful argument in order to demonstrate the prejudice required under the
Strickland test. Hogan v. State, 2013 Ark. 223 (per curiam) (citing Lowe v. State, 2012 Ark.
185, ___ S.W.3d ___ (per curiam)). Failure to make a meritless objection or motion does not
constitute ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871
(2004).
The constitutional challenge to the rape-shield statute, which appellant contended
counsel should have made, would not have succeeded. A similar challenge was made in
Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534, where we explained that the rape-shield
statute survives challenges under the separation-of-powers doctrine by granting wide
discretion to the circuit judge and by not placing a total bar on the admissibility of certain
kinds of evidence. Nelson, 2011 Ark. 429, at 7, 384 S.W.3d at 538; see also M.M. v. State, 350
Ark. 328, 88 S.W.3d 406 (2002) (citing Sera v. State, 341 Ark. 415, 443, 17 S.W.3d 61, 78
(2000) (“We do not view the statute as having supplanted this court’s rulemaking power and
ability to control the courts.”)).
Likewise, appellant failed to demonstrate in his petition that counsel could have
4 Cite as 2013 Ark. 453
pursued a successful motion to sever the charges of rape and second-degree sexual assault.2 To
demonstrate that counsel could have successfully pursued a motion to sever, appellant must
have shown that the charges were not part of a single scheme or plan or that the same body
of evidence would not be offered to prove each offense. See Ark. R. Crim. P. 22.2(a) (2010);
see also Watson v. State, 2012 Ark. 27 (per curiam); White v. State, 370 Ark. 284, 259 S.W.3d
410 (2007). The testimony at trial indicated that, on one evening, appellant entered the
victim’s bedroom, lay down behind her, began touching the upper part of her leg, and placed
his hand inside of her bra. The victim further testified that appellant then touched the inside
of her vagina with his finger and attempted to place his penis inside of her vagina. The
charged crimes were part of a single scheme or plan as they occurred during the course of one
evening with no lapse of time separating the sexual assault and the rape by digital penetration,
and the same evidence was offered to prove the three charges; thus, a motion to sever the
charges would not have been successful. Because appellant did not demonstrate that a
constitutional challenge to the rape-shield statute or a motion to sever would have had any
merit, the circuit court did not err in denying relief on these claims of ineffective assistance.
As his third and final ineffective-assistance-of-counsel claim, appellant alleged in his
petition that counsel was ineffective in failing to prepare for the sentencing phase of trial.
Specifically, appellant argued that he was prejudiced during the sentencing phase of trial
2 Appellant was charged with two counts of rape, one count involving digital penetration and one count involving penile penetration, as well as one count of sexual assault in the second degree. The jury found appellant guilty of one count of rape involving digital penetration and of second-degree sexual assault. A mistrial was declared on the rape charge involving penile penetration because the jury was unable to reach a verdict.
5 Cite as 2013 Ark. 453
because he was sentenced as a habitual offender after the jury was made aware of his prior
convictions. While the circuit court gave wide berth to this claim, appellant did not delineate
any specific action or lack of action by counsel, other than the conclusory allegation of lack
of preparation, to substantiate his claim of ineffective assistance.3 Petitions that state only a
conclusion are patently deficient in that there can be no showing of actual prejudice to the
petitioner without factual support for the allegations made by him. Smith v. State, 290 Ark.
90, 717 S.W.2d 193 (1986). General assertions that counsel did not prepare for trial do not
provide sufficient grounds for an ineffective-assistance-of-counsel claim. Polivka v. State, 2010
Ark. 152, 362 S.W.3d 918.
This court has held that it will not reverse a decision granting or denying
postconviction relief unless that decision is clearly erroneous. Singleton v. State, 2013 Ark. 348
(per curiam); 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. Hickey, 2013 Ark.
237, ___ S.W.3d ___. After reviewing the record on appeal, as well as the preserved
arguments presented in appellant’s late-tendered appellate brief, it is clear that the circuit court
did not err in denying appellant’s request for postconviction relief, and appellant could not
prevail if the appeal were permitted to go forward. Therefore, we dismiss the appeal and hold
appellant’s motion for extension of time moot.
Robert Preston Clayton, pro se appellant. No response.
3 In its order denying relief, the circuit court interpreted appellant’s third claim of ineffective assistance as being based on an assertion that counsel failed to question or challenge the enhanced sentence.