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                SUPREME COURT OF ARKANSAS
                                      No.   CR-10-545

MICKEY DAVID THOMAS                              Opinion Delivered   March 20, 2014
                   APPELLANT
                                                 APPEAL FROM THE SEVIER
V.                                               COUNTY CIRCUIT COURT
                                                 [NO. CR-2004-5-2]

STATE OF ARKANSAS                                HONORABLE TED C. CAPEHEART,
                                 APPELLEE        JUDGE

                                                 AFFIRMED.


                            KAREN R. BAKER, Associate Justice


       On September 28, 2005, a Pike County jury convicted appellant, Mickey David

Thomas, of two counts of capital murder and sentenced him to death. We affirmed his

conviction and sentence in Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).

       On April 16, 2009, Thomas filed his initial, unverified Rule 37.5 petition in the

Sevier County Circuit Court and a motion to amend his petition. On November 6, 2009,

Thomas filed an amended Rule 37.5 petition, and on that same day the circuit court

conducted a hearing on Thomas’s petition. On February 1, 2010, the circuit court denied

Thomas’s petition. Thomas asserts proper jurisdiction and now brings this appeal. He

presents two issues for review: (1) the circuit court erred when it denied Thomas’s claim that

he had received ineffective assistance of counsel when his counsel did not object to a change

of venue to Pike County, Arkansas, and (2) the circuit court erred when it denied Thomas’s

claim that he had received ineffective assistance of counsel when his counsel failed to secure
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and present the testimony of Lieutenant Alex Mathis.

                                          Jurisdiction

       Prior to reaching the merits of Thomas’s appeal, we must first address jurisdiction

because jurisdiction is a threshold issue, as well as the basis of the order being appealed.

Gilliland v. State, 2011 Ark. 480 (per curiam).

       Thomas contends that the circuit court maintained jurisdiction and his appeal is ripe

for review. The State responds that the we do not have jurisdiction to hear this case because

the circuit court did not have jurisdiction to hear Thomas’s Rule 37.5 petition. The State

contends that the circuit court lacked the authority to grant extensions of time for the filing

of Thomas’s petition. The State further asserts that the circuit court was without jurisdiction

to entertain Thomas’s belated and improperly filed Rule 37.5 petition, and therefore, we are

without jurisdiction.

       Rule 37.5(e) addresses the timeliness of the filing of petitions for relief pursuant to

Rule 37.5. Subsection (e) of the Ark. R. Crim. P. 37.5 (2013), entitled “Time for Filing

Post-Conviction Petition” provides: “A petition for relief under this rule shall be filed in the

circuit court that imposed the sentence of death within ninety (90) days after the entry of the

order required in subsection (b)(2) of this rule.” In reviewing the time limitations contained

in Rule 37.5 cases, in Engram v. State, 2013 Ark. 424, at 6, we explained:

       [T]his court has never held that the ninety-day time limitation of Rule 37.5(e) is an
       absolute jurisdictional bar.

       ...

       This court in Jackson [v. State, 343 Ark. 613, 37 S.W.3d 595 (2001)] refused to hold

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       that the time limits of Rule 37.5(e) create an absolute procedural bar to the belated
       filing of a postconviction petition in a capital case. The court in Jackson further
       explained as follows:

               Porter, [v. State, 339 Ark. 15, 2 S.W.3d 73 (1999)], and the cases that follow
               suggest that Rule 37.5 requires a heightened standard of review of capital cases
               because the State has undertaken, via Act 925 of 1997 and Rule 37.5, to
               provide collateral relief so as “to eliminate the need for multiple federal habeas
               corpus proceedings in death cases.” Again, while there is no constitutional
               right to a postconviction proceeding, when the State undertakes the role of
               providing such, as it has done here, it must comport with due process and be
               fundamentally fair.

       Here, the record demonstrates that, based on Thomas’s counsel’s December 26, 2007

appointment, his Rule 37.5 petition was due on March 25, 2008. Thomas’s counsel filed six

motions for extensions of time to file the Rule 37.5 petition, and the circuit court granted

each motion, with the petition ultimately due on April 16, 2009. On April 16, 2009, Thomas

filed his initial, unverified petition for relief pursuant to Rule 37.5 and also filed a motion to

amend his petition. On November 6, 2009, Thomas filed his amended petition, and on that

same day, the circuit court conducted a hearing on Thomas’s amended petition.

       The issue before us regarding the timely filing of Thomas’s Rule 37.5 petition is one

of fundamental fairness. When we apply the analysis from Engram, the question becomes

whether it is fundamentally fair to require an inmate under a death sentence to abide by the

stringent filing deadlines when his counsel timely filed his initial petition, the circuit court

granted extensions of time, and Thomas complied with the circuit court’s deadlines. The

record before us indicates that the approximate eighteen-month extension of time was granted

for several reasons: counsel’s heavy workload; co-counsel’s withdrawal from Thomas’s case

because co-counsel moved out of state; appointment of new counsel; new counsel’s obtaining

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certification; the circuit judge’s recusal in this case; and another circuit judge’s recusal because

he was the prosecutor in the original trial. We note that none of these delays were within

Thomas’s control. Further, the delays were not in Thomas’s counsel’s control. Here, to

prohibit Thomas from proceeding on his postconviction petition would be to ignore the

well-settled principle that, while there is no constitutional right to a post-conviction

proceeding, when a state undertakes to provide collateral relief, due process requires that the

proceeding be fundamentally fair. See Engram. Under the facts and circumstances of this case,

and considering the finality of the punishment at issue, we hold that the circuit court

maintained jurisdiction to consider Thomas’s petition, and thus, vests jurisdiction with this

court to reach the merits of Thomas’s Rule 37.5 appeal.1

                                              Venue

       For his first point on appeal, Thomas asserts that the circuit court erred when it denied

his claim that he received ineffective assistance of counsel because his counsel did not object

to a change of venue to Pike County, Arkansas. The State responds that the argument is

without merit and also not cognizable in postconviction proceedings.

       On July 21, 2005, the circuit court conducted a pretrial hearing on Thomas’s motion

to change venue based on pretrial publicity. In that motion, Thomas submitted voluminous



       1
        The State also contends that the circuit court was without jurisdiction because of
alleged procedural violations by Thomas: (1) Thomas’s co-counsel’s failure to properly
withdraw, (2) Thomas’s failure to have new co-counsel properly appointed with an order, and
(3) Thomas’s failure to obtain a ruling on his motion to amend his petition. However, despite
the merits of these allegations, the argument fails because these matters are not jurisdictional
and would not prevent the circuit court from ruling on Thomas’s petition.

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information regarding pretrial publicity for the four counties in the district, including Pike

County. The pretrial publicity data demonstrated that Pike and Howard Counties had

received the least amount of publicity in the four-county district. Thomas also submitted as

exhibits “Data Tables for Population Percent by Race and County from the 2000 Census.”

The circuit court granted Thomas’s motion and moved the trial to Pike County.

       On appeal, Thomas alleges that once the circuit court granted his motion and moved

his trial to Pike County, his counsel was ineffective for failing to properly object to the

transfer to Pike County because Pike County had a very small African American population,

and Thomas is African American. Stated differently, according to Thomas, although Pike

County was within the judicial district and did receive the least amount of pretrial publicity,

which was the basis for the change of venue, his counsel was ineffective for not taking the

next step and objecting to the circuit court’s choice of county. Thomas further asserts that

his counsel should have objected and included claims of systematic exclusion of specific racial

groups.

       The State responds that Thomas has failed to meet the requirements of Strickland v.

Washington, 466 U.S. 668 (1984), which requires a showing that trial counsel’s conduct was

so egregious that he was not acting as the counsel guaranteed by the Sixth Amendment, and

that Thomas suffered prejudice from the conduct that rendered the outcome of the trial

unreliable. Additionally, the State responds that Thomas’s venue claim is not cognizable in

a postconviction matter because his claim is one of trial strategy.

       Turning to our review, “on appeal from a circuit court’s ruling on a petitioner’s


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request for Rule 37 relief, this court will not reverse the circuit court’s decision granting or

denying post-conviction relief unless it is clearly erroneous. 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.”

Mason v. State, 2013 Ark. 492, at 1–2 (internal citations omitted).

       Claims of ineffective assistance of counsel are reviewed under the standard of review

set forth in Strickland:

       A convicted defendant’s claim that counsel’s assistance was so defective as to require
       reversal of a conviction has two components. First, the defendant must show that
       counsel’s performance was deficient. This requires showing that counsel made errors
       so serious that counsel was not functioning as the “counsel” guaranteed the defendant
       by the Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s errors were
       so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
       Unless a defendant makes both showings, it cannot be said that the conviction resulted
       from a breakdown in the adversary process that renders the result unreliable.

Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.
at 687).

       Thus, Thomas must first show that counsel’s performance fell below an objective

standard of reasonableness and then that counsel’s errors actually had an adverse effect on the

defense. Id. Thomas must satisfy both prongs of the test, and it is not necessary to determine

whether counsel was deficient if Thomas fails to demonstrate prejudice as to an alleged error.

Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).

       Further, with respect to an ineffective-assistance-of-counsel claim regarding venue, to

establish that the failure to seek a change in venue amounted to ineffective assistance of

counsel, a petitioner must offer some basis on which to conclude that an impartial jury was

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not empaneled. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990).

       At issue is the circuit court’s denial of Thomas’s venue claim. In its February 11, 2010

order, the circuit court stated:

               The court finds there was no error in change on venue to Pike County. The
       court finds from the record of the venue hearing, the difference in African American
       population of Pike County and Sevier County to be less than 1%. Further, [Thomas]
       introduces no evidence that any class of people were systematically excluded from the
       Pike County Jury pool. . . .

               The court in reviewing the venue hearing finds that the case was properly
       transferred to Pike County due to that county receiving the least trial publicity of the
       other three counties in the judicial district. Thus, the court finds that [Thomas] was
       not prejudiced.


       Here, Thomas has failed to allege, let alone prove, that he was prejudiced, or that the

jury that heard his case was biased and not impartial. Thomas has offered nothing other than

conclusory allegations that counsel was deficient for failing to seek a change of venue and has

not alleged that he was prejudiced. Thomas alleges that had his counsel objected to the

transfer to Pike County, he would have had an opportunity to raise Batson, Fourteenth

Amendment, and Sixth Amendment challenges and the systematic exclusion of certain jurors.

However, Thomas simply makes conclusory statements.2

       Additionally, the decision whether to seek a change of venue is largely a matter of trial

strategy and therefore not an issue for debate under our postconviction rule. Neff v. State, 287

Ark. 88, 696 S.W.2d 736 (1985). At Thomas’s Rule 37.5 hearing, Thomas’s counsel testified



       2
       Thomas conceded at oral argument that he has not presented any evidence of a
systematic exclusion of certain jurors.

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that his actions at the venue hearing were matters of trial strategy. Thomas alleges that the

failure to object was not trial strategy yet offers no alternative to the counsel’s position that

it was trial strategy; he simply states that it was not trial strategy.

       Based on the discussion above, we do not find that the circuit court erred. Thomas

did not provide any support for his conclusory claims that counsel was ineffective. Likewise,

there has been no showing that counsel committed any specific error that prejudiced the

defense because Thomas did not specify, with facts, that he was prejudiced. In reviewing the

record before us and Thomas’s argument, we are unpersuaded that Thomas has met his

burden. We affirm on this point.

                                      Lieutenant Alex Mathis

       For his second point on appeal, Thomas contends that the circuit court erred when it

denied Thomas’s claim that he had received ineffective assistance of counsel when his counsel

failed to secure and present the testimony of Lieutenant Alex Mathis. The State responds that

we should affirm the circuit court, alleging that Thomas’s argument is without merit. The

State also asserts that trial strategy is not a cognizable claim in postconviction proceedings.

       On July 1, 2004, the circuit court conducted a pretrial hearing. At the hearing, one

of the investigating officers of the murders, Lieutenant Alex Mathis, with the DeQueen,

Arkansas Police Department, testified regarding his investigation. Mathis testified that there

was no allegation “of sexual penetration, any sexual assault or rape or anything of that nature.”

       At trial, Joshua Warren testified for the State. Warren was an arresting officer with the

Idabel, Oklahoma Police Department, and he testified that upon arrest, when he patted


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Thomas down, he removed the contents of Thomas’s pocket. Warren testified that the

contents of Thomas’s pocket consisted of money, an unused condom, two spent .38-caliber

rounds and a set of keys. Over Thomas’s counsel’s objection, the condom was introduced

into evidence.

       On appeal, Thomas alleges that his counsel was ineffective for not calling Mathis to

rebut Warren’s testimony and the circuit court erred in denying his claim.

       In reviewing an assertion of ineffective assistance of counsel concerning the failure to

call a certain witness, this court’s objective is to determine whether the failure resulted in

actual prejudice that denied the petitioner a fair trial. Moten v. State, 2013 Ark. 503 (per

curiam). The decision whether to call or not to call a particular witness is largely a matter of

professional judgment. The fact that there was a witness or witnesses who could have offered

beneficial testimony is not, in itself, proof of counsel’s ineffectiveness. Noel v. State, 342 Ark.

35, 26 S.W.3d 123 (2000). Accordingly, in order to demonstrate prejudice, Thomas must

establish that there was a reasonable probability that, had counsel presented the witness, the

outcome of the trial would have been different.

       With these standards in mind, we turn to the circuit court’s February 1, 2010 order

and its denial of Thomas’s claim on this point:

       [Thomas’s counsel] testified at this hearing that although a condom was found on
       [Thomas] at his arrest was introduced, the State never argued that [Thomas’s] intent
       was rape. He testified he did not want to draw attention to that fact. Thus the
       decision to use the officer’s testimony was one of trial strategy. Further, the court finds
       that to be a good tactical decision. The officer’s testimony about the crime scene
       would in no way negate the evidence found on [Thomas] and would only bring to the
       jury’s attention what the prosecutor never mentioned. Finally, [Thomas] failed to
       prove how introducing said testimony would change the outcome of the trial.

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       The record demonstrates that at Thomas’s Rule 37.5 hearing, Thomas’s counsel

testified that he made a strategic decision not to call Mathis because he did not want to draw

additional attention to the evidence:

       Our concern was that the State would allege that the homicides occurred because
       [Thomas] was going to rape one or more of the victims. And if you notice, [the
       prosecutor] stayed away from that in his closing argument so he wouldn’t have that
       argument, but our -- my purpose basically was to make sure that there was no
       allegation that there was any evidence consistent of a rape. It was bad enough that
       there was already string or twine found and a condom found. We don’t need any –
       you know the prosecutor did not open the door and say what do you think, ladies and
       gentleman, Mr. Thomas’s intent was?

       Here, Thomas asserts his counsel should have called Mathis to testify despite the

prosecution’s theory, to rebut any insinuation or implication regarding sex crimes. However,

Thomas did not offer facts from which it could be said that counsel’s decision not to call

Mathis or introduce his prior testimony was anything more than trial strategy. Additionally,

Thomas has failed to demonstrate that he was prejudiced by his counsel’s decision not to call

Mathis to testify.

       Our review of the record demonstrates that no error was committed and we affirm the

circuit court on Thomas’s claim regarding Lieutenant Mathis.

       Based on the discussion above and our standard of review, we find no error and affirm.

       Affirmed.

       Harrelson Law Firm, P.A., by: Jeff Harrelson, for appellant.

       Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.




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