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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-12-887

                                                    Opinion Delivered June   19, 2014
GARLAND GREEN
                                APPELLANT           PRO SE APPEAL FROM THE PULASKI
                                                    COUNTY CIRCUIT COURT
V.                                                  [NO. 60CR-08-4448]

STATE OF ARKANSAS                                   HONORABLE JOHN B. PLEGGE,
                                  APPELLEE          JUDGE


                                                    AFFIRMED.


                                        PER CURIAM

       In 2010, appellant Garland Green was found guilty in a trial to the bench of attempted

capital murder, possession of a firearm by a felon, and first-degree battery. He was sentenced

to an aggregate term of 120 months’ imprisonment. The Arkansas Court of Appeals affirmed.

Green v. State, 2011 Ark. App. 700.

       Appellant subsequently filed in the trial court a timely, verified pro se petition for

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

conducting a hearing, the trial court denied appellant’s petition, and he brings this appeal. Our

jurisdiction to entertain the appeal is pursuant to Rule 37 and Arkansas Supreme Court Rule 1-

2(a)(8) (2013).

       We first note that the transcript of the Rule 37.1 hearing was not made a part of the

record in this appeal, and appellant did not file a petition for writ of certiorari or a motion to
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supplement the record to bring up the hearing transcript.1 The appellant bears the burden of

producing a record demonstrating error. Greene v. State, 2013 Ark. 251 (per curiam); Jackson v.

State, 2012 Ark. 41 (per curiam). As to the duty of the appellant to produce an adequate record

for an appeal, the pro se litigant is held to the same standards as licensed attorneys inasmuch as

an adequate record is necessary if this court is to make a finding of error. See Brown v. Gibson,

2012 Ark. 285, 423 S.W.3d 34 (per curiam); see also Lucas v. Jones, 2012 Ark. 365, 423 S.W.3d 580.

       This court has held that it will reverse the circuit court’s decision granting or denying

postconviction relief only when that decision is clearly erroneous. Hayes v. State, 2014 Ark. 104,

___ S.W.3d ___. 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. Johnson v. State, 2014 Ark. 74; Sartin v. State, 2012

Ark. 155, 400 S.W.3d 694.

       In his petition, appellant contended that his trial counsel was ineffective in several ways.

On appeal, he reiterates some of the claims of ineffective assistance of counsel contained in the

petition, and it is those allegations that are the bases for the points for reversal in this appeal.

All other allegations of ineffective assistance of counsel and any other arguments made below



       1
         Appellant filed in this court a motion to supplement the record with the record of his
trial that was lodged in the direct appeal. The motion was declared moot because it is not
necessary in a postconviction appeal for an appellant to seek leave to add the direct-appeal
record in the same criminal case to the record lodged in the postconviction appeal. Green v. State,
2013 Ark. 132 (per curiam). The direct-appeal record is automatically considered to be
consolidated with the postconviction-appeal record. Drymon v. State, 327 Ark. 375, 938 S.W.2d
825 (1997) (per curiam).


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but not raised on appeal are considered abandoned. See Anthony v. State, 2014 Ark. 195 (per

curiam).

       When considering an appeal from a trial court’s denial of a Rule 37.1 petition on grounds

that counsel was ineffective, the sole question presented is whether, based on a totality of the

evidence under the standard set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s

performance was not ineffective. Taylor v. State, 2013 Ark. 146, ___ S.W.3d ___.

       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.” Strickland, 466 U.S. at 686. Pursuant to

Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner

raising a claim of ineffective assistance must 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. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). A

court must indulge in a strong presumption that counsel’s conduct falls within the wide range

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

       Second, the petitioner must show that counsel’s deficient performance so prejudiced

petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140,426

S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his

counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,

2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable


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probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt

respecting guilt, i.e., the decision reached would have been different absent the errors. Howard

v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the

trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in

sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction

resulted from a breakdown in the adversarial process that renders the result unreliable. Id.

“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both

components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,

466 U.S. at 697.

       To understand the points raised in appellant’s brief, a recitation of the facts of the case

is helpful. In 2008, appellant and Rufus Worsham engaged in a physical altercation at a

motorcycle club. A witness testified that, after the fight, Worsham ran outside to his truck but

could not get in it because it was locked. Appellant followed him and shot him several times.

Another witness testified that she had seen a gun in Worsham’s waistband before the fight, that

she witnessed the fight, that she saw Worsham run to his truck followed by appellant, and that

Worsham moved in what she believed was a threatening manner toward appellant, which caused

appellant to begin firing the gun at Worsham. Another witness also testified that Worsham had

been armed with a gun when the fight began. There was also testimony that several bullets

struck Worsham while he was near his truck and that he ran away and attempted to hide, but

appellant drove around the neighborhood until he found Worsham and shot him again.


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(Worsham had a total of five bullet wounds.) Appellant testified that he took Worsham’s gun

during the fight and followed him outside because he thought Worsham was intending to

retrieve another gun from the truck. Appellant said that Worsham rushed at him, threatening

to kill him, at which time he began shooting at Worsham. Appellant denied chasing Worsham

down and shooting him again.

       Appellant argues on appeal that there were obvious signs of tampering with physical

evidence and “false swearing” by witnesses in the police report. Appellant’s Rule 37.1 petition

was convoluted and difficult to follow, and those issues were not raised in the petition in those

words. To the extent that some of the allegations in the petition could be construed to cover

the claims, however, appellant was entitled to no relief because the claims were conclusory

without factual substantiation to establish that appellant was prejudiced. Conclusory allegations

are insufficient to overcome the presumption that counsel is effective under Strickland. Mathis

v. State, 2014 Ark. 148 (per curiam). In his brief, appellant merely makes the statement that

counsel knew of the tampering and false swearing, but he offers no argument to demonstrate

that counsel was ineffective.

       Appellant next argues on appeal that counsel erred in failing to secure the testimony of

witnesses who could have given evidence favorable to the defense, including six alibi witnesses

and an “expert witness” who could have testified on forensic evidence regarding the trajectory

of the bullets and the crime scenes where Worsham had been shot. The claim, as set out in the

petition and in appellant’s brief, does not establish ineffective assistance of counsel under the

Strickland standard because appellant has largely failed to state specifically what the witnesses’


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testimony would have been. His general statement that the witnesses would have given

testimony favorable to the defense was not sufficient to show that counsel was remiss in not

calling a particular witness. See Breeden v. State, 2014 Ark. 159, ___ S.W.3d ___ (per curiam).

       With respect to those witnesses that appellant did name in his petition as being favorable

defense witnesses who were not called, appellant offered no statement of compelling evidence

that any of the persons could have provided testimony to countermand the evidence against

appellant when that evidence is considered in its totality. Appellant further alleged that counsel

had statements made by Worsham and a man who witnessed the fight that were inconsistent and

that counsel failed to properly interview either man to prepare impeachment material for when

they testified at his trial. The claims were not enough to overcome the presumption that counsel

was effective under the Strickland standard because appellant offered no factual basis from which

it could be determined that the allegedly inconsistent statements were admissible at his trial.

Accordingly, he has failed to meet his burden under the first prong of Strickland in that he has

not demonstrated that counsel’s performance fell below an objective standard of reasonableness.

Nor has appellant met the second prong under Strickland because he has failed to demonstrate

that he was prejudiced by defense counsel’s failure to interview a particular witness or to secure

the witness’s testimony at trial. Appellant must do more than allege prejudice; he must

demonstrate it with facts. Stiggers v. State, 2014 Ark. 184, ___ S.W.3d ___ (citing Walton v. State,

2013 Ark. 254 (per curiam)).

       On appeal, appellant relies to some degree on the general claim that there was a failure

on trial counsel’s part to conduct an adequate pretrial investigation. To warrant postconviction


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relief on the ground that counsel was ineffective for failure to perform adequate investigation,

a petitioner must delineate the actual prejudice that arose from the failure to investigate and

demonstrate a reasonable probability that the specific materials that would have been uncovered

with further investigation could have changed the trial outcome. Bryant v. State, 2013 Ark. 305,

___ S.W.3d ___ (per curiam). The burden is entirely on the claimant to provide facts that

affirmatively support his or her claims of prejudice; neither conclusory statements nor allegations

without factual substantiation are sufficient to overcome the presumption that counsel was

effective, and such statements and allegations will not warrant granting a Rule 37.1 petition.

Dixon v. State, 2014 Ark. 97 (per curiam) (citing Abernathy, 2012 Ark. 59, 386 S.W.3d 477). Here,

appellant fails to provide facts sufficient to show that he was prejudiced by counsel’s failure to

properly investigate the case before trial.

       Having considered the arguments raised by appellant in this appeal, the record, and the

order rendered by the trial court, there are no grounds on which to reverse the trial court’s

ruling. Accordingly, the order is affirmed.

       Affirmed.

       Garland Green, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.




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