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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-15-76

TIMOTHY L. WHEELER                                  Opinion Delivered May   21, 2015
                                APPELLANT
                                                    PRO SE MOTIONS FOR TRANSCRIPT,
V.                                                  FOR EXTENSION OF TIME, FOR
                                                    APPOINTMENT OF COUNSEL, AND
                                                    TO SUPPLEMENT ABSTRACT,
STATE OF ARKANSAS                                   ADDENDUM AND BRIEF, AND
                                  APPELLEE          APPELLEE’S MOTION FOR
                                                    EXTENSION OF BRIEF TIME
                                                    [PULASKI COUNTY CIRCUIT COURT,
                                                    NO. 60CR-12-3324]

                                                    HONORABLE HERBERT T. WRIGHT,
                                                    JR. JUDGE

                                                    APPEAL DISMISSED; MOTIONS
                                                    MOOT.


                                          PER CURIAM


       In 2013, a jury found appellant Timothy L. Wheeler guilty of first-degree battery and

sentenced him to 360 months’ imprisonment in the Arkansas Department of Correction. The

Arkansas Court of Appeals affirmed the judgment. Wheeler v. State, 2014 Ark. App. 281.

Wheeler subsequently filed in the trial court a pro se petition for postconviction relief under

Arkansas Rule of Criminal Procedure 37.1 (2014) that was denied. He lodged an appeal from

that order in this court. Wheeler filed five motions in which he sought an extension of time to

file his brief, access to the transcript, and appointment of counsel. Wheeler then filed his brief,

and he has now filed a motion to supplement the brief and tendered a supplemental brief with

the motion. The State filed a motion for an extension of brief time along with its response to
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the motion to supplement. Because we dismiss the appeal, the motions are moot.

       When it is clear from the record that the appellant cannot prevail if an appeal of an order

that denies postconviction relief is permitted to go forward, we dismiss the appeal. Winters v.

State, 2014 Ark. 399, 441 S.W.3d 22 (per curiam). Here, it is clear from the record that Wheeler’s

petition under Rule 37.1 failed to set forth a meritorious claim for relief, and he therefore cannot

prevail on appeal.

       A brief summary of the evidence presented at trial is necessary to understand the issues.

A police officer picked Wheeler up near a location in North Little Rock where two witnesses

saw a man fitting Wheeler’s description strike Jason Bernard with a large stick or board. One

of the witnesses, Marlando Collins, identified Wheeler to an officer on the scene and in court.

Collins testified that he saw two men arguing from his car, that he circled the block and

observed Wheeler grab a stick or board and strike Bernard as Bernard was walking away. Collins

stated in his testimony that, after Bernard fell face first onto the cement sidewalk, Wheeler struck

him again, kicked him several times, and threw the implement on the ground before walking

away. A doctor who treated Bernard at the hospital that night testified concerning Bernard’s

injuries. Bernard’s mother, Wanda Jean Campise, testified that Bernard was no longer able to

care for himself and required assistance to bathe or dress.

       In his Rule 37.1 petition, Wheeler alleged that trial counsel was ineffective for failing to

have an expert “interpret” the medical information, for failing to use evidence of the victim’s

legal problems and drug use to support Wheeler’s claim of self defense, for failing to impeach

the victim’s mother with a felony conviction, for failing to impeach Collins about inconsistent



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statements, for failing to object to the admission of a stick found at the scene as the weapon, for

failing to object when the prosecutor made a statement while Wheeler was testifying indicating

that the victim would have been better off if Wheeler had pushed Bernard into traffic, for failing

to object to the seating of a juror whose father worked for the railroad, for failing to investigate

a 911 call involving Bernard at Wheeler’s house ten days before the incident, for failing to object

to sentencing under the wrong statute, for failing to object to the prosecutor stating that the

victim was hit in the back of the head, and for failing to object to admission of a statement by

an officer that Wheeler had been in a previous altercation with Bernard even though a tape from

the officer’s vehicle’s recorder was not admitted.1 In addition, Wheeler alleged that he was

prejudiced because the trial judge did nothing when he complained that his attorney was given

co-counsel only four days before trial. Woven into Wheeler’s allegations of ineffective assistance

are a number of assertions that the evidence was insufficient to support the judgement.

       Wheeler’s claims of insufficient evidence and trial error concerning the failure of the

judge to grant a continuance or other relief when co-counsel was appointed are not claims

cognizable in proceedings under Rule 37.1. Generally, Rule 37 does not provide a remedy when

an issue could have been raised at trial or argued on appeal. State v. Rainer, 2014 Ark. 306, 440

S.W.3d 315. Claims of mere trial error and challenges to the sufficiency of the evidence are not

grounds for relief under Rule 37.1. See Stewart v. State, 2014 Ark. 419, 443 S.W.3d 538 (per

curiam).

       1
         Wheeler filed a motion to amend and extend the ten-page limit that was denied by the
trial court. Wheeler did not identify any additional claims in the motion that he would have
raised. Wheeler appeared to wish instead to additionally argue the same claims identified in the
original petition.
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       Wheeler’s claims of ineffective assistance of counsel, although cognizable, did not include

sufficient factual substantiation to support his claims. Such unsupported claims do not provide

a basis for postconviction relief. See Young v. State, 2015 Ark. 65. In making that determination,

our review follows the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under

that two-prong analysis, to prevail on a claim of ineffective assistance of counsel, the petitioner

must show that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced his defense. Mister v. State, 2014 Ark. 446.

       The benchmark for judging a claim of ineffective assistance of counsel must be “whether

counsel’s conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Taylor v. State, 2013 Ark. 146, 427 S.W.3d

29. Unless a petitioner under Rule 37 makes both required showings under the Strickland

analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial

process that renders the result unreliable. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883.

       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. Stewart, 2014 Ark. 419, 443 S.W.3d 538. This court has held that a

claimant must show that there is a reasonable probability that the fact-finder’s decision would

have been different absent counsel’s errors in order to meet the second prong of the test. Sales,

2014 Ark. 384, 441 S.W.3d 883. A reasonable probability is a probability sufficient to undermine



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confidence in the outcome of the trial. Id. The burden is entirely on the claimant to provide

facts that affirmatively support his claims of prejudice. Mister, 2014 Ark. 446. In those instances

when appellant alleged deficient performance, appellant’s claims did not include sufficient facts

to meet that burden.

       A number of Wheeler’s claims alleged that counsel was ineffective for failure to

investigate potential evidence.     Under the applicable standard, a petitioner who asserts

ineffective assistance for failure to investigate must show that further investigation would have

been fruitful. Young v. State, 2015 Ark. 65. In addition to identifying specific materials that

counsel could have uncovered, the petitioner must also show that those items discovered would

have been sufficiently significant to raise a reasonable probability of a different outcome at trial.

Id. Wheeler did not show that counsel could have uncovered sufficiently significant information

that would raise a reasonable probability of a different outcome if counsel had further

investigated the medical information, Bernard’s legal problems and possible drug addiction, or

the 911 call for Wheeler’s previous altercation with Bernard.

       Wheeler identified no specific evidence that he alleged counsel may have presented at

trial as a result of further investigation. To the extent that he alleged generally that there was

evidence that the victim was a drug addict, Wheeler made little more that conclusory statements

concerning how this evidence would have furthered his defense. Conclusory claims such as

Wheeler made in the petition fail to demonstrate prejudice or support postconviction relief. See

McNichols v. State, 2014 Ark. 462, 448 S.W.3d 200 (per curiam); Nalls v. State, 2014 Ark. 434, 445

S.W.3d 509 (per curiam).



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       Wheeler alleged that the evidence would have contradicted the victim’s statements

concerning the attack. There were, however, no statements made by the victim concerning the

attack in the evidence admitted at trial. Further, counsel was successful in eliciting some

testimony that supported Bernard having a violent nature. There was testimony that referenced

the previous confrontation that resulted in a 911 call. In light of testimony from Collins that

Wheeler had struck Bernard as Bernard was attempting to leave, any additional evidence

supporting Wheeler’s knowledge of Bernard’s violent nature would not appear to be sufficiently

significant to raise a reasonable probability of a different outcome at trial.

       Next, Wheeler asserted counsel was ineffective for failure to impeach Campise with her

felony conviction and to impeach Collins with his inconsistent statements. Again, Wheeler failed

to affirmatively support his claims of prejudice for these claims by providing facts that would

raise a reasonable probability of a different outcome at trial.

       The trial court had granted a motion in limine by the State to exclude the use of

Campise’s felony conviction. The conviction was not to be used for impeachment purposes on

the basis that it exceeded the time limitations in Arkansas Rule of Evidence 609 (2014) because

it was more than ten years old. Although Wheeler alleged that counsel should have used the

felony, he did not allege any facts concerning how counsel could have successfully challenged

the ruling in order to use the felony to impeach Campise. As for Collin’s inconsistent

statements, counsel had brought out a number of inconsistencies during cross examination, and

those additional ones identified by Wheeler in the petition were not sufficient to raise a

reasonable probability of a different outcome at trial.



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       Wheeler’s remaining claims alleged ineffective assistance based on a failure to object. In

order to demonstrate prejudice for a failure to object, the petitioner must have submitted facts

to support the proposition that counsel could have raised a specific, meritorious argument and

that failing to raise that specific argument would not have been a decision supported by

reasonable professional judgment. Montgomery v. State, 2014 Ark. 122 (per curiam). Where it is

asserted that counsel was ineffective for failure to make a motion or argument, the petitioner

must show that the motion or argument would have been meritorious; the failure to make an

argument that is meritless is not ineffective assistance of counsel. Rainer, 2014 Ark. 306, 440

S.W.3d 315.

       Wheeler therefore had a burden to demonstrate that counsel could have made a

meritorious argument against admission of the stick. Appellant asserted counsel should have

argued that the stick was not shown to have been used in the crime. There was evidence

admitted that appellant used a board or stick to strike Bernard, that the weapon was thrown

down in the area where the stick was found, and that there were stains on the stick when it was

found shortly after the beating. The stains appeared to be blood. Counsel did object to

admission of the stick on the basis that a proper foundation had not been made, referring to her

previous comments that the apparent blood on the stick had not been tested. In light of the

evidence at trial and the admission of the stick over counsel’s objection, Wheeler failed to meet

his burden.

       Concerning Wheeler’s claims that counsel should have objected to the prosecutor making

a statement that Bernard would have been better off if Wheeler had pushed him into traffic and



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that Bernard was hit in the back of the head, the record is at odds with Wheeler’s allegations.

There was no statement made during Wheeler’s testimony about Wheeler pushing the victim

into traffic as alleged. Counsel could not be ineffective for failing to object if no comment was

made. Wheeler asserted that counsel should have objected on the basis that the prosecutor’s

comments that Bernard had been hit in the back of the head were at odds with the testimony.

Collins, however, testified that Wheeler hit Bernard in the back of the head. The proposed

objection therefore would have been without merit.

       Wheeler also failed to demonstrate that counsel could have successfully challenged the

seating of the juror that he alleged was biased. Wheeler alleged that the juror’s father worked

for the railroad and had been attacked with a stick. Wheeler did not identify the specific juror.

The record indicates that during voir dire one seated juror stated that her grandfather had retired

from the railroad that employed the two eyewitnesses and that her stepfather had been murdered

with a blunt object. The record also indicates that the juror indicated that she could set aside

her past experiences in that regard, render a decision based on the evidence, and not convict

someone because of her experiences.

       To prevail on an allegation of ineffective assistance of counsel with regard to jury

selection, a petitioner first has the heavy burden of overcoming the presumption that jurors are

unbiased. Hayes v. State, 2011 Ark. 327, 383 S.W.3d 824 (per curiam). To accomplish this, a

petitioner must demonstrate actual bias. Id. The actual bias must have been sufficient to

prejudice the petitioner to the degree that he was denied a fair trial. Id. Wheeler’s allegations

in the petition were not sufficient to meet that heavy burden, to the extent that those allegations



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may have been supported by the record.

       Wheeler’s next claim was that counsel should have objected to Wheeler’s sentencing

under Arkansas Code Annotated section 16-93-609. The judgment in this case includes a

notation that Wheeler was not eligible for parole because he had a prior first-degree battery

conviction. One of the exhibits admitted at trial concerning Wheeler’s status as a habitual

offender was a 2005 judgment reflecting such a conviction. It is true that parole eligibility is

within the domain of the executive branch; the judiciary has no jurisdiction over how parole

eligibility is determined. Johnson v. State, 2012 Ark. 212. Regardless, if counsel had objected and

the notation, which was accurate, was removed from the judgment, Wheeler would remain

subject to application of section 16-93-609 by the Department of Correction. Wheeler was

therefore not prejudiced by any failure of counsel to object to the notation on the judgment.

       Wheeler’s final claim in the petition was that counsel was ineffective for failing to object

when the police officer who had picked Wheeler up near the crime scene referred to the

previous altercation between Wheeler and Bernard, even though the audio tape from the patrol

car had not been admitted into evidence. Wheeler did not indicate how counsel could have

raised any specific meritorious argument in order to exclude the statement. Wheeler only vaguely

indicated that the statement was taken out of context and did not identify a meritorious

argument that counsel might have made in order to have the statement excluded. In addition,

the statement was not, even if taken out of context, detrimental to Wheeler’s defense. As already

noted, it was helpful in substantiating Wheeler’s testimony.

        We can determine from the record that none of Wheeler’s claims in the petition had



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merit. Because Wheeler failed to set forth a meritorious claim for relief, he cannot prevail on

appeal.

          Appeal dismissed; motions moot.




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