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                SUPREME COURT OF ARKANSAS
                                       No. CR-15-658

                                                Opinion Delivered: April 13, 2017

ANTONIO WILLIAMS                                PRO SE APPEAL FROM THE
                              APPELLANT         PULASKI COUNTY CIRCUIT
V.                                              COURT
                                                [60CR-12-653]
STATE OF ARKANSAS
                                 APPELLEE
                                                HONORABLE HERBERT T.
                                                WRIGHT, JR., JUDGE

                                                AFFIRMED.


                                      PER CURIAM

       In 2013, a jury found appellant Antonio Williams guilty of capital murder for the

death of Kelvin Lott Shelton, and he was sentenced to life without parole, with an additional

sentence enhancement of eighty-four months’ imprisonment for employing a firearm in

commission of the crime. This court affirmed. Williams v. State, 2014 Ark. 253, 435 S.W.3d

483. Williams filed in the trial court a timely pro se petition under Arkansas Rule of

Criminal Procedure 37.1 (2016). Williams retained counsel, and with the trial court’s

permission, counsel amended the petition. After an evidentiary hearing, the trial court

denied the amended petition, and still represented by counsel, Williams lodged an appeal in

this court. Counsel was relieved, and with Williams proceeding pro se, the matter has now

been briefed. We affirm the trial court’s order denying postconviction relief.

       This court will not reverse a trial court’s decision granting or denying postconviction

relief unless it is clearly erroneous. Houghton v. State, 2015 Ark. 252, 464 S.W.3d 922; Kemp
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v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). 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. Turner v.

State, 2016 Ark. 96, 486 S.W.3d 757.

       In his Rule 37.1 petition, Williams raised two claims of ineffective assistance of

counsel. He first alleged that trial counsel failed to call an alibi witness, Daquasha Johnson.

In his second claim, Williams alleged that counsel was ineffective for allowing the

introduction of evidence concerning the identification of Williams by Torrece Graydon as

an eyewitness to an incident with Shelton leading up to Shelton’s murder.                 The

identification was made prior to trial from a photo array, and the trial court had suppressed

the evidence on a defense motion.

       On the first claim, the trial court found that counsel was not ineffective, that

Williams’s assertion that he was not present at the scene of the crime was undercut by

evidence introduced at his trial, and that Williams’s testimony that he had told his attorney

about Johnson before his trial during the Rule 37 hearing was not credible. On the second

claim, the trial court found that counsel had attempted to have both the photo array and

any in-court identification by the eyewitness suppressed; that counsel had testified that,

when the in-court identification was not suppressed, he was forced to use the photo-array

evidence in order to provide the jury with an explanation for the eyewitness’s in-court

identification of Williams, and that, because this decision to introduce the photo-array

evidence was reasonable trial strategy, counsel was not ineffective.




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        Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis

set forth in Strickland v. Washington, 466 U.S. 668 (1984). Rasul v. State, 2015 Ark. 118,

458 S.W.3d 722. 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. Unless a petitioner makes both

showings, the allegations do not meet the benchmark on review for granting relief on a

claim of ineffective assistance. Houghton, 2015 Ark. 252, 464 S.W.3d 922.

       Counsel is presumed effective, and allegations without factual substantiation are

insufficient to overcome that presumption. Henington v. State, 2012 Ark. 181, 403 S.W.3d

55. A petitioner claiming deficient performance must show that counsel’s representation

fell below an objective standard of reasonableness, and this court must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Id. A petitioner has the burden of overcoming the presumption that counsel is

effective by identifying specific acts and omissions that, when viewed from counsel’s

perspective at the time of trial, could not have been the result of reasonable professional

judgment. Id.

       To prevail on a claim of ineffective assistance of counsel, a petitioner must also show

that there is a reasonable probability that the fact-finder’s decision would have been different

absent counsel’s alleged errors in order to meet the second prong of the test. Sales v. State,

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

undermine confidence in the outcome of the trial. Id. In assessing prejudice, courts “must




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consider the totality of the evidence before the judge or jury.” Rasul, 2015 Ark. 118, at 7,

458 S.W.3d at 727 (quoting Strickland, 466 U.S. at 695).

       A brief recitation of some of the evidence at trial is helpful in understanding the issues

presented.1 Graydon testified that she and Shelton had gone to meet with someone Shelton

had described to her and called “Big Mike.” Shelton planned to sell him some marijuana.

“Big Mike” is Williams’s brother, Michael Williams. Both brothers have burn scars on their

faces from a fire when they were children. Graydon testified that Shelton had parked behind

a car for the meeting with Big Mike and that, initially, two men had gotten out of the car

and into the backseat of the Jeep that Shelton was driving. After Shelton showed the men

the marijuana, they went back to the car to get approval for the purchase. They came back

with a third man, who got into the Jeep’s backseat while the other two men stood outside.

The third man placed a gun to Shelton’s head and demanded the drugs. Graydon got out

of the Jeep, and she heard gunshots as she fled. Shelton was found dead in the Jeep after

Graydon had alerted the police. After the incident, Graydon told the police that the man

with the gun had scars on his face.

       On appeal, Williams reiterates his claims from the petition and asserts that the trial

court’s interpretation of Strickland was unreasonable.        Concerning his first ineffective-

assistance claim, Williams contends that trial counsel failed to investigate sufficiently to

discover Johnson’s testimony. As to the second prong of the Strickland test, Williams alleges

that Johnson would have testified that Williams was at his house with her at the time of the



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       We may take judicial notice of the record from the direct appeal without need to
supplement the record. Flemons v. State, 2016 Ark. 460, 505 S.W.3d 196 (per curiam).

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crime and his brother was not, that the testimony would have raised reasonable doubt and

discredited Graydon’s testimony, and that he was therefore prejudiced by counsel’s failure

to discover and present Johnson’s testimony at trial.

       Despite Williams’s assertions that there was deficient performance and prejudice, the

trial court’s factual findings support its apparent conclusion that Williams failed to satisfy

either prong of the two-part Strickland test, and those findings were not clearly erroneous.

The trial court specifically stated that it found not credible Williams’s testimony at the Rule

37 hearing that he had told his attorney that Johnson could provide alibi testimony. In

rendering its decision, the trial court was not required to accept Williams’s testimony as

truthful, and this court does not assess the credibility of witnesses on appeal. Smith v. State,

2016 Ark. 417, 504 S.W.3d 595.

       Williams’s trial attorney testified at the Rule 37 hearing that he had investigated the

witnesses that Williams had given him, although he did not recall specifically whether he

had talked to Johnson. He did remember that all of the alibi witnesses had placed both

Michael and Williams at the house and that they were more certain about the fact that

Michael was there. Because the defense strategy was based on the possibility that Michael

had committed the murder, counsel concluded that all of the testimony would be more

harmful than helpful.

       On appeal, Williams appears to contend that, even if the trial court did not believe

his testimony, counsel had failed to investigate sufficiently to discover Johnson’s potential

testimony. When counsel was questioned at the Rule 37 hearing about whether other alibi

witnesses had mentioned Johnson’s presence at the house, however, counsel indicated that


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he did not specifically recall, but that if he had understood that there was anyone who could

have said Williams was at the house, he would have spoken to them. In denying the claim,

the trial court referenced this testimony and appears to have concluded that counsel was

credible in testifying that he would have spoken to Johnson if her name had been

mentioned. When there is conflict that presents an issue of credibility, it is the trial court’s

task as trier of fact to resolve it, and, especially where the petitioner in a Rule 37 proceeding

has the most interest in the outcome of the proceeding, the court is free to believe all or

part of any witness’s testimony. Jones v. State, 2014 Ark. 448, 486 S.W.3d 743 (per curiam).

We will not overturn the decision of the trial court in a matter based on an assessment of

credibility by the trier of fact. Id.

       Moreover, the trial court’s findings support a determination that Williams did not

demonstrate prejudice from counsel’s failure to discover Johnson’s potential testimony. In

assessing prejudice, we consider the totality of the evidence before the jury. The trial court

pointed to evidence admitted at trial that undercut any potential testimony by Johnson that

Williams was not at the crime scene. This included evidence that Williams told his sister

that he was at the crime scene but that he had not shot Shelton. The trial court also pointed

to tapes of Williams’s conversations with his mother while he was incarcerated. During

these conversations, Williams appeared to ask his mother to have someone offer Graydon

money in return for an affidavit stating that he was not at the crime scene. Later, Williams

spoke of having prepared a letter to send to a judge, once again averring that he had been

at the scene of the murder but had not shot Shelton and did not know what was going to

happen. In addition to the evidence noted, a statement Michael made to the police was


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admitted in which Michael stated that Williams had also come to him after the murder in

an emotional state and that Williams had told the same story about being present during the

murder when another individual shot Shelton. In light of this offsetting evidence, Williams

has not shown that Johnson’s potential testimony would have been of any significant value

to his defense. Williams therefore did not demonstrate that, but for counsel’s failure to

present her testimony, there was a reasonable probability that the fact-finder’s decision

would have been different.

       In his second point on appeal, Williams alleges that it was error for the trial court to

find that trial counsel made a reasonable strategic decision to introduce the evidence of the

photo-array identification. Williams appears to argue that, once the evidence had been

excluded, it could not be admitted, that both identifications, including the one Graydon

made in court, were unreliable, and that his counsel needed his waiver to have the evidence

admitted.

       To the extent that Williams would directly challenge the trial court’s original ruling

on the admissibility of the in-court identification, the issue is not one cognizable in Rule

37 proceedings. Chatmon v. State, 2016 Ark. 126, 488 S.W.3d 501 (per curiam) (holding

that claims of trial error such as improper admission of prejudicial evidence are not grounds

for relief under Rule 37.1); see also State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315 (noting

that this court has held that allegations of a due-process violation based on alleged trial error

regarding the admissibility of evidence are not cognizable in Rule 37 proceedings).

Moreover, this court previously considered the issue on direct appeal and rejected the

argument. The law-of-the-case doctrine dictates that issues concluded in a prior appellate


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decision may not be revisited in a subsequent proceeding because the matter becomes res

judicata. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). This is true even if the

decision was wrongly decided. Id. Williams therefore cannot now challenge the trial court’s

admission of the in-court identification.

       While the trial court had granted the defense motion to bar the prosecution from

using the evidence of the photo array for the purpose of establishing Graydon’s identification

of Williams as the man with the gun, it did not rule that the defense could not waive its

objection to the introduction of the evidence to serve a different purpose, that is, in order

to counter an in-court identification of Williams by Graydon. Trial counsel made plain in

his argument against admission of an in-court identification that he would feel compelled

to adopt such a strategy if the trial court did not exclude any in-court identification, and

counsel renewed his objection to the in-court identification at the time that the photo array

was introduced with the same argument. Counsel also testified at the Rule 37 hearing that

he had been forced to use the photo-array evidence in order to provide the jury with an

explanation for the eyewitness’s in-court identification of Williams. The trial court found

that this decision to allow the introduction of the photo-array evidence was reasonable trial

strategy.

       Matters of trial strategy and tactics, even if arguably improvident, fall within the realm

of counsel’s professional judgment and are not grounds for finding ineffective assistance of

counsel. Hartman v. State, 2017 Ark. 7, 508 S.W.3d 28. When a decision by trial counsel

is a matter of trial tactics or strategy and that decision is supported by reasonable professional

judgment, then such a decision is not a proper basis for relief under Rule 37. Van Winkle


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v. State, 2016 Ark. 98, 486 S.W.3d 778. The reviewing court must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Hartman, 2017 Ark. 7, 508 S.W.3d 28.

       Counsel made a deliberate decision to allow introduction of the evidence, and he

provided his specific reasoning for doing so. In order for the defense theory to be successful,

countering the in-court identification of Williams was, as counsel indicated, crucial.

Williams does not suggest any alternative tactic that may have been implemented by counsel.

We cannot conclude that the trial court was clearly erroneous in determining that counsel’s

decision was one of reasonable trial strategy. Even if counsel’s tactical choices had been

different with the benefit of hindsight, the fact that the strategy was unsuccessful does not

render counsel’s assistance ineffective. See id.

       As for Williams’s assertion that counsel had an obligation to obtain his express waiver

before adopting the strategy of admitting the pretrial identification to counter the in-court

identification, he misconstrues the case he cites for that proposition. In Florida v. Nixon,

543 U.S. 175 (2004), the United States Supreme Court noted that an attorney has a duty to

consult with the client regarding important decisions, including overarching defense

strategy. Williams does not take issue with trial counsel’s overarching strategy to suggest

that his brother was the gunman. He contends, however, that counsel should not have

employed the tactic used to counter the in-court identification.

       In Nixon, the Court acknowledged that an attorney has authority to manage most

aspects of the defense without obtaining his client’s approval and need not obtain consent

to every tactical decision, citing Taylor v. Illinois, 484 U.S. 400, 417–18 (1988). Nixon does


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not stand for the proposition that express consent is required in circumstances like those in

this case, and it does hold that, unless the alleged error in adopting an unsuccessful strategy

amounts to a failure to function in any meaningful sense to oppose the State’s case, the

defendant asserting that counsel was ineffective must show that the strategy was unreasonable

and prejudiced him. Nixon, 543 U.S. 175. Williams failed to make either showing.

       Affirmed.

       Antonio Williams, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee




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