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                SUPREME COURT OF ARKANSAS
                                      No. CR-16-687

                                               Opinion Delivered: December 1, 2016

                                               PRO SE MOTION FOR
                                               EXTENSION OF TIME TO SUBMIT
                                               APPEAL BRIEF AND WAIVE
JOSEPH M. BIENEMY                              ADDENDUM REQUIREMENT OR,
                              APPELLANT        ALTERNATIVELY, ORDER THE
V.                                             APPELLEE TO SUBMIT
                                               SUPPLEMENTAL ADDENDUM
STATE OF ARKANSAS                              [WHITE COUNTY CIRCUIT
                                APPELLEE       COURT, NO. 73CR-07-211]


                                               HONORABLE ROBERT EDWARDS,
                                               JUDGE

                                               APPEAL DISMISSED; MOTION
                                               MOOT.


                                     PER CURIAM

       Appellant Joseph M. Bienemy was convicted of capital murder, as an accomplice, for

the death of Carlos Deadmon, and this court affirmed the judgment. Bienemy v. State, 374

Ark. 232, 287 S.W.3d 551 (2008). In 2008, Bienemy filed in the trial court a pro se petition

for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015) and, on

the same day, he filed a petition for scientific testing under Act 1780 of 2001 Acts of

Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated

sections 16-112-201 to -208 (Repl. 2006). The trial court denied the Rule 37.1 petition,

addressing some issues that were related to those raised in the Act 1780 petition, and this

court affirmed. Bienemy v. State, 2011 Ark. 320 (per curiam). In 2016, Bienemy filed in
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the trial court a second petition seeking scientific testing under Act 1780, and that petition

was denied. Bienemy lodged an appeal of the order in this court, and he has filed a motion

in which he seeks an extension of time to file his brief. Bienemy also seeks either the waiver

of the requirement that his brief include an addendum or an order from this court directing

the State to supplement the addendum. We need not consider Bienemy’s requests made in

the motion because we dismiss the appeal. The motion is therefore moot.

       An appeal of the denial of postconviction relief, including an appeal from an order

denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go

forward where it is clear that the appellant could not prevail. Hill v. State, 2016 Ark. 258,

493 S.W.3d 754 (per curiam). Because Bienemy failed to state a basis on which the trial

court could have ordered scientific testing under the statutes, he cannot prevail on appeal.

       Act 1780 provides that a writ of habeas corpus may be issued based on new scientific

evidence proving a person actually innocent of the offense for which he was convicted.

Ark. Code Ann. § 16-112-201; Pankau v. State, 2013 Ark. 162. A circuit court can order

testing under the Act when the proposed testing of the specific evidence may produce new

material evidence that would support the theory of defense and raise a reasonable probability

that the petitioner did not commit the offense. Pankau, 2013 Ark. 162. Where the scientific

evidence was available at trial, the facts underlying the claim, if proven and viewed in light

of the evidence as a whole, must be sufficient to establish by clear and convincing evidence

that no reasonable fact-finder would find the petitioner guilty of the underlying offense.

Ark. Code Ann. § 16-112-201(a).




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       Bienemy listed a number of items he wished to have tested. He indicated these items

had been found at the crime scene, were referenced at trial, and had been tagged as evidence

by the police. These items included bullet fragments from the crime scene, bullet fragments

from the victim’s body, and shell casings found at the scene of the murder. Bienemy

contends that testing these items, specifically DNA testing and fingerprint analysis, would

produce evidence that would demonstrate that individuals other than Bienemy had been

present at the crime scene. The trial court found that Bienemy’s petition was not timely;

that he did not allege any new method of technology that was substantially more probative

than that which was available at the time of his trial; that, if the testing showed that other

persons were present, those results would not offer clear and convincing evidence to show

Bienemy was not guilty of the crime; and that the presence of other individuals at the crime

scene did not support a finding of innocence.

       Our standard of review for the denial of testing under Act 1780 requires that we will

not reverse a circuit court’s decision to deny relief unless it is clearly erroneous. Pankau,

2013 Ark. 162. 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. Id.

       With the amendments under Act 2250, there are a number of predicate requirements

that must be met before a court can order testing under the Act. Hill, 2016 Ark. 258, 493

S.W.3d 754. One of these predicate requirements is that those petitioners who file a motion

for testing more than thirty-six months after the entry of the judgment of conviction must

rebut a presumption against timeliness. Ark. Code Ann. § 16-112-202(10)(B). Bienemy

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attempted to rebut that presumption, and he requested that his later petition be treated as a

supplement to the earlier petition in order to satisfy this timeliness requirement. Bienemy,

however, failed to satisfy other requirements under section 16-112-202 in either of his Act

1780 petitions, regardless of whether he satisfied the requirements under the statute

concerning timeliness.

       Under section 16-112-202, the petition must identify specific evidence for testing

that was secured as a result of petitioner’s conviction; the evidence must have been

maintained subject to a chain of custody; and the petitioner must identify a theory of

defense, not inconsistent with any affirmative defense presented at trial, based on the new

evidence that the requested testing would provide, and which would establish petitioner’s

actual innocence. Ark. Code Ann. § 16-112-202(1),(4),(6); Clemons v. State, 2014 Ark.

454, 446 S.W.3d 619 (per curiam). In addition, the specific evidence to be tested cannot

have been previously subject to the same testing, and the petitioner who seeks testing must

not have knowingly waived the right to test the evidence or failed to request testing in a

prior motion for postconviction testing. Ark. Code Ann. § 16-112-202(2). The proposed

testing must produce new material evidence that would support the theory of defense

presented at trial and raise a reasonable probability that the petitioner did not commit the

offense. Ark. Code Ann. § 16-112-202(8); Davis v. State, 2011 Ark. 191 (per curiam).

Bienemy failed to identify evidence that would satisfy the criteria in the statute because the

potential results would not support the theory of defense he relies on in a way to establish

his innocence or raise a reasonable probability that Bienemy did not commit the offense.




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       We described the evidence at trial in our opinion on Bienemy’s direct appeal. See

Bienemy, 374 Ark. 232, 287 S.W.3d 551. A brief summary of the evidence is helpful in

determining whether the trial court was clearly erroneous in finding that Bienemy failed to

demonstrate that the testing requested could produce evidence sufficient to raise a reasonable

probability that Bienemy did not commit the offense.

       As noted, Bienemy was convicted as an accomplice to Deadmon’s murder.

Deadmon’s girlfriend testified that she saw someone exit a gray Jeep and shoot Deadmon

after Deadmon had gotten into his own car to leave his apartment complex. Other witnesses

also placed a gray Jeep at the scene. The morning before Deadmon’s murder, Bienemy had

rented a gray Jeep matching the description of the vehicle that the witnesses had seen.

Although Bienemy told the police that he had left town the afternoon before the murder

occurred and that he was in New Orleans at the time that Deadmon was shot, Bienemy was

seen on surveillance footage from a gas station exiting the rented Jeep to pay for gas on the

morning that Deadmon was shot. Bienemy’s DNA was matched to DNA from the plastic

tip of a partially smoked cigar found at the scene. There was testimony about a dispute

between Bienemy and the victim. Darian Williams, who lived at the apartment complex

where the murder occurred, testified that Bienemy had instructed him to call if he saw

Deadmon, that Bienemy had called Williams the evening before the murder saying that he

was in the apartment complex’s parking lot, that Williams had seen a gray Jeep in the

apartment complex’s parking lot the evening before the murder, that the same gray Jeep

was in the same spot the next morning, and that Williams had seen Bienemy in another

apartment on the morning of Deadmon’s murder.

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       We have previously discussed whether evidence of another person present at the

crime scene could constitute material evidence favorable to Bienemy. See Bienemy v. State,

2016 Ark. 312, ___ S.W.3d ___ (per curiam). In that case, Bienemy alleged a violation of

Brady v. Maryland, 373 U.S. 83 (1963), as the basis for issuance of a writ of error coram

nobis, and he alleged that the State had withheld evidence in the form of DNA test reports

that connected Shedric Williams to DNA recovered from the crime scene.                As we

determined in that case, evidence connecting another person to the crime scene would not

exonerate Bienemy. Bienemy was charged as an accomplice rather than the shooter. The

results of additional tests would not change the DNA test results that directly linked

Bienemy to the crime scene or alter the strong circumstantial evidence that connected

Bienemy to the Jeep involved in the murder and that established Bienemy’s motive and his

actions in lying to the police concerning his whereabouts at the time of the murder. It

therefore follows that the trial court was not clearly erroneous in finding that the proposed

testing to determine whether there was evidence of other individuals at the crime scene did

not meet the requirements of the statute, and Bienemy therefore cannot prevail on appeal.

       Appeal dismissed; motion moot.




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