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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-82-121
                                                     Opinion Delivered March 19, 2015

ROOSEVELT ABERNATHY                                  PRO SE PETITION TO REINVEST
                  PETITIONER                         JURISDICTION IN THE TRIAL
                                                     COURT TO CONSIDER A PETITION
                                                     FOR POSTCONVICTION RELIEF
V.                                                   PURSUANT TO ARKANSAS RULE OF
                                                     CRIMINAL PROCEDURE 37.1 AND
                                                     MOTION TO INTRODUCE EXHIBITS
STATE OF ARKANSAS                                    AS EVIDENCE
                              RESPONDENT             [PULASKI COUNTY CIRCUIT COURT,
                                                     NO. 60CR-82-316]


                                                     PETITION DISMISSED; MOTION
                                                     MOOT.


                                         PER CURIAM

       In 1982, petitioner was found guilty by a jury of capital felony murder and first-degree

battery. An aggregate sentence of life imprisonment without parole was imposed. We affirmed.

Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).

       After the judgment was affirmed on appeal, petitioner sought leave from this court to

proceed in the trial court with a petition pursuant to Arkansas Rule of Criminal Procedure 37.1

(1982). The petition was denied. Abernathy v. State, CR-82-121 (Ark. Jan. 14, 1985) (unpublished

per curiam).

       In 2013, petitioner filed a second petition here to proceed under the Rule, raising a series

of allegations of ineffective assistance of counsel. 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) (1982). Petitioner’s original
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petition was not denied without prejudice to filing a subsequent petition. The petition was

dismissed by syllabus entry on May 23, 2013.

        Now before us is petitioner’s third 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. As stated, petitioner was required to raise all issues

for postconviction relief in the original petition. Also before us is petitioner’s motion to

introduce some exhibits as evidence. Because petitioner is not entitled to proceed again under

the Rule, the petition is dismissed. The motion to introduce exhibits is moot.

        Petitioner argues, as he did in his second petition, that he should be permitted to proceed

again under the Rule pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012) and related cases,

arguing that his attorney at trial and on direct appeal was ineffective. Petitioner’s reliance on

Martinez and its progeny is misplaced.1 The Martinez Court held that, when state law requires a

prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney

was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules

in bringing his collateral attack on the judgment will no longer bar a federal judge from granting

habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral

proceeding or his attorney was ineffective and if the petition filed in the state court had a

meritorious claim. In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Court extended its holding in

Martinez to cases in which a state’s procedural framework make it unlikely in a typical case that



        1
        Petitioner also invokes Arkansas Code Annotated section 16-91-202 (Repl. 2006) as
authority for his argument that he is entitled to proceed under the Rule, but the statute is not
availing as it applies to cases in which the petitioner was sentenced to death.
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a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of

trial counsel on direct appeal. Neither the ruling in Martinez nor the ruling in Trevino, or

subsequent cases based on the rulings in those cases, however, dictated that there cannot be

limits placed on the number of petitions for postconviction relief that may be filed in state court

by one petitioner. See Smith v. State, 2015 Ark. 23, ___ S.W.3d ___ (per curiam).

       While there is no constitutional right to a postconviction proceeding, when a state

undertakes to provide collateral relief, due process requires that the proceeding be fundamentally

fair. Davis v. State, 2010 Ark. 366 (per curiam). The fundamental requirement of due process

is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Due

process does not require courts to provide an unlimited opportunity to present postconviction

claims. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Maulding v. State, 299 Ark.

570, 776 S.W.2d 339 (1989) (per curiam). This court has held that certain procedural

requirements or other limitations on postconviction relief do not violate the right to due process.

See, e.g., Croft v. State, 2010 Ark. 83 (per curiam) (A petition under the rule not verified in

accordance with Rule 37.1(c) is subject to dismissal.); Robinson v. State, 295 Ark. 693, 751 S.W.2d

335 (1988) (per curiam) (Requiring a petition for postconviction relief to meet certain threshold

requirements is fundamentally fair.). Placing certain limitations on the length and form of

petitions under the Rule is an entirely reasonable restriction on petitioners seeking

postconviction relief. See Davis, 2010 Ark. 366. While this court is not unmindful of the

holdings of Martinez and Trevino, neither requires this court to forgo procedural rules that serve

to streamline the process by which petitioners present claims for postconviction relief to the trial



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courts. Smith, 2015 Ark. 23, ___ S.W.3d ___ . The prompt and orderly disposition of petitions

for postconviction relief requires standards to control the content, length and form of the

petitions, and the number of such petitions that each petitioner is permitted to file. Id.; see also

Maulding, 299 Ark. 570, 776 S.W.2d 339.

       Petition dismissed; motion moot.

       Roosevelt Abernathy, pro se petitioner.

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




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