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                 SUPREME COURT OF ARKANSAS
                                          No.   CR-12-631

                                                      Opinion Delivered   November 7, 2013


ROBERT PRESTON CLAYTON                                PRO SE MOTION FOR EXTENSION
  APPELLANT                                           OF TIME TO FILE BRIEF
                                                      [ARKANSAS COUNTY CIRCUIT
v.                                                    COURT, NORTHERN DISTRICT,
                                                      01CR-09-11, HON. DAVID G.
STATE OF ARKANSAS                                     HENRY, JUDGE]
  APPELLEE

                                                      APPEAL DISMISSED; MOTION
                                                      MOOT.


                                          PER CURIAM

       In 2010, appellant Robert Preston Clayton was found guilty by a jury in the Arkansas

County Circuit Court, Northern District, of rape and second-degree sexual assault of his

minor daughter. He was sentenced as a habitual offender to an aggregate term of 960 months’

imprisonment. The Arkansas Court of Appeals affirmed. Clayton v. State, 2012 Ark. App.

199.    Appellant subsequently filed in the circuit court a timely pro se petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The

circuit court denied appellant’s petition without a hearing, and appellant timely lodged an

appeal from the order.1


       1
         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “shall make written findings to that effect, specifying
any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.
Crim. P. 37.3(a); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
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       Now before us is appellant’s motion for extension of time to file a brief. Because it is

clear from the record that appellant could not prevail on appeal, we dismiss the appeal, and

the motion is therefore moot.       An appeal from an order that denied a petition for

postconviction relief will not be permitted to go forward where it is clear that the appellant

could not prevail. Denson v. State, 2013 Ark. 209 (per curiam); Roberson v. State, 2013 Ark.

75 (per curiam).

       In an appeal from a circuit court’s denial of a petition for postconviction relief under

Rule 37.1 based on claims of ineffective assistance of counsel, the sole question presented is

whether, based on the totality of the evidence, the circuit court clearly erred in holding that

counsel’s performance was not ineffective under the standard set forth in Strickland v.

Washington, 466 U.S. 668 (1984). Hickey v. State, 2013 Ark. 237, ___ S.W.3d ___ (per

curiam). Under the two-prong Strickland test, a petitioner raising a claim of ineffective

assistance of counsel must first show that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the

United States Constitution. Id. A petitioner making an ineffective-assistance-of-counsel

claim must show that counsel’s performance fell below an objective standard of

reasonableness. Dansby v. State, 347 Ark. 674, 66 S.W.3d 585 (2002). In doing so, the

petitioner must overcome a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.

The petitioner has the burden of overcoming the presumption by identifying specific acts and


postconviction relief complies with the requirements of Rule 37.3.

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omissions that, when viewed from counsel’s perspective at the time of trial, could not have

been the result of reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per

curiam).

       With respect to the second prong of the test, the petitioner must show that counsel’s

deficient performance so prejudiced petitioner’s defense that he or she was deprived of a fair

trial. Holloway v. State, 2013 Ark. 140, ___ S.W.3d ___. Such a showing requires that the

petitioner demonstrate a reasonable probability that the fact-finder’s decision would have been

different absent counsel’s errors. Flowers v. State, 2010 Ark. 364, 370 S.W.3d 278 (per

curiam). A reasonable probability is a probability sufficient to undermine confidence in the

outcome of the trial. Id. The burden is entirely on a petitioner in a Rule 37.1 proceeding to

provide facts that affirmatively support a claim of prejudice. Thompson, 2013 Ark. 179.

Conclusory statements cannot be the basis of postconviction relief. Id. Unless a petitioner

makes both showings, it cannot be said that the conviction resulted from a breakdown in the

adversarial process rendering the result unreliable. Springs v. State, 2012 Ark. 87, 387 S.W.3d

143. There is no reason for a court deciding an ineffective-assistance-of-counsel claim to

address both components of the Strickland standard if the petitioner makes an insufficient

showing on one of the prongs. Id. (citing Strickland, 466 U.S. at 697).

       Appellant alleged in his Rule 37.1 petition that counsel was ineffective in failing to

challenge the constitutionality of Arkansas’s rape-shield statute, codified at Arkansas Code

Annotated section 16-42-101 (Repl. 1999), on the ground that the statute’s proscription of

certain types of evidence in sex-crime cases violates the separation-of-powers doctrine.


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Appellant also alleged that counsel was ineffective in failing to move to sever the charges of

rape and second-degree sexual assault on the ground that the charges “were joined solely on

the basis that they involved similar conduct.”

       A petitioner seeking postconviction relief on a claim of ineffective assistance that is

based on the failure of counsel to make a motion or objection must show that counsel could

have made a successful argument in order to demonstrate the prejudice required under the

Strickland test. Hogan v. State, 2013 Ark. 223 (per curiam) (citing Lowe v. State, 2012 Ark.

185, ___ S.W.3d ___ (per curiam)). Failure to make a meritless objection or motion does not

constitute ineffective assistance of counsel. Greene v. State, 356 Ark. 59, 146 S.W.3d 871

(2004).

       The constitutional challenge to the rape-shield statute, which appellant contended

counsel should have made, would not have succeeded. A similar challenge was made in

Nelson v. State, 2011 Ark. 429, 384 S.W.3d 534, where we explained that the rape-shield

statute survives challenges under the separation-of-powers doctrine by granting wide

discretion to the circuit judge and by not placing a total bar on the admissibility of certain

kinds of evidence. Nelson, 2011 Ark. 429, at 7, 384 S.W.3d at 538; see also M.M. v. State, 350

Ark. 328, 88 S.W.3d 406 (2002) (citing Sera v. State, 341 Ark. 415, 443, 17 S.W.3d 61, 78

(2000) (“We do not view the statute as having supplanted this court’s rulemaking power and

ability to control the courts.”)).

       Likewise, appellant failed to demonstrate in his petition that counsel could have




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pursued a successful motion to sever the charges of rape and second-degree sexual assault.2 To

demonstrate that counsel could have successfully pursued a motion to sever, appellant must

have shown that the charges were not part of a single scheme or plan or that the same body

of evidence would not be offered to prove each offense. See Ark. R. Crim. P. 22.2(a) (2010);

see also Watson v. State, 2012 Ark. 27 (per curiam); White v. State, 370 Ark. 284, 259 S.W.3d

410 (2007). The testimony at trial indicated that, on one evening, appellant entered the

victim’s bedroom, lay down behind her, began touching the upper part of her leg, and placed

his hand inside of her bra. The victim further testified that appellant then touched the inside

of her vagina with his finger and attempted to place his penis inside of her vagina. The

charged crimes were part of a single scheme or plan as they occurred during the course of one

evening with no lapse of time separating the sexual assault and the rape by digital penetration,

and the same evidence was offered to prove the three charges; thus, a motion to sever the

charges would not have been successful. Because appellant did not demonstrate that a

constitutional challenge to the rape-shield statute or a motion to sever would have had any

merit, the circuit court did not err in denying relief on these claims of ineffective assistance.

       As his third and final ineffective-assistance-of-counsel claim, appellant alleged in his

petition that counsel was ineffective in failing to prepare for the sentencing phase of trial.

Specifically, appellant argued that he was prejudiced during the sentencing phase of trial


       2
        Appellant was charged with two counts of rape, one count involving digital penetration
and one count involving penile penetration, as well as one count of sexual assault in the second
degree. The jury found appellant guilty of one count of rape involving digital penetration and
of second-degree sexual assault. A mistrial was declared on the rape charge involving penile
penetration because the jury was unable to reach a verdict.

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because he was sentenced as a habitual offender after the jury was made aware of his prior

convictions. While the circuit court gave wide berth to this claim, appellant did not delineate

any specific action or lack of action by counsel, other than the conclusory allegation of lack

of preparation, to substantiate his claim of ineffective assistance.3 Petitions that state only a

conclusion are patently deficient in that there can be no showing of actual prejudice to the

petitioner without factual support for the allegations made by him. Smith v. State, 290 Ark.

90, 717 S.W.2d 193 (1986). General assertions that counsel did not prepare for trial do not

provide sufficient grounds for an ineffective-assistance-of-counsel claim. Polivka v. State, 2010

Ark. 152, 362 S.W.3d 918.

       This court has held that it will not reverse a decision granting or denying

postconviction relief unless that decision is clearly erroneous. Singleton v. State, 2013 Ark. 348

(per curiam); Banks v. State, 2013 Ark. 147. 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. Hickey, 2013 Ark.

237, ___ S.W.3d ___. After reviewing the record on appeal, as well as the preserved

arguments presented in appellant’s late-tendered appellate brief, it is clear that the circuit court

did not err in denying appellant’s request for postconviction relief, and appellant could not

prevail if the appeal were permitted to go forward. Therefore, we dismiss the appeal and hold

appellant’s motion for extension of time moot.

       Appeal dismissed; motion moot.

       Robert Preston Clayton, pro se appellant.
       No response.


       3
         In its order denying relief, the circuit court interpreted appellant’s third claim of
ineffective assistance as being based on an assertion that counsel failed to question or challenge
the enhanced sentence.

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