Hawthorne v. State
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Cite as 2010 Ark. 343
SUPREME COURT OF ARKANSAS
No.
CR 10-457
Opinion Delivered
MELVIN HAWTHORNE
Appellant
v.
STATE OF ARKANSAS
Appellee
September 23, 2010
PRO SE MOTION FOR EXTENSION
OF TIME TO FILE BRIEF [CIRCUIT
COURT OF GARLAND COUNTY,
CR 2007-115, HON. JOHN WRIGHT,
JUDGE]
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2008, appellant Melvin Hawthorne was found guilty by a jury of possession of a
controlled substance with intent to deliver and simultaneous possession of drugs and firearms.
He was sentenced as a habitual offender to 306 months’ imprisonment. The Arkansas Court
of Appeals affirmed. Hawthorne v. State, 2009 Ark. App. 635.
Appellant subsequently filed in the trial court a pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The petition was denied.
Appellant lodged an appeal here and now seeks by pro se motion an extension of time to file
the appellant’s brief.
We need not address the merits of the motion because it is clear from the record that
appellant could not prevail on appeal if the appeal were permitted to go forward.
Cite as 2010 Ark. 343
Accordingly, the appeal is dismissed, and the motion is moot. An appeal from an order that
denied a petition for postconviction relief will not be permitted to proceed where it is clear
that the appellant could not prevail. Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins
v. State, 2010 Ark. 156 (per curiam); Meraz v. State, 2010 Ark. 121 (per curiam); Smith v.
State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
Appellant first contended in his petition that he was not afforded effective assistance
of counsel at trial. The exact allegation read:
Defense counsel violated numerous Rules governing Att. Conduct. Counsel
failed to met the case of the prosecutor, and client objectives not to be denied Liberty
at Interest w/o Due Process of Law, and Equal-Protection thereof. Counsel failed in
his competence, Thoroughness—Preperation and Scope of Advice in Case Matter, by
refusing client’s Request to challenge, suppress and or Rebutt the Sufficiency, Content
and Execution of the Search Warrant. Which Prejudiced the defendant under the
“Fruit’s of the Poisonous Tree” doctrine. Where the Search Lacked consent for
Execution, Rendering any Seized Evidence as Illegally Seized, defendants Arrest
Unlawful; solely due to an Insufficient Search Warrant admitted before Jurior’s at
Trial. And considered upon defendant’s coviction determination.
There was no factual substantiation offered for any claim. As an example, appellant did not
state a basis on which his attorney could have mounted a meritorious challenge to the search
warrant or provide any grounds on which to argue a denial of due process of law.
In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective
assistance of counsel, the question presented is whether, under the standard set forth by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and based on
the totality of the evidence, the trial court clearly erred in holding that counsel’s performance
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Cite as 2010 Ark. 343
was not ineffective. Watkins, 2010 Ark. 156 , ___ S.W.3d ___ (citing Small v. State, 371 Ark.
244, 264 S.W.3d 512 (2007) (per curiam)). 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. Actual
ineffectiveness claims alleging deficiency in attorney performance are subject to a general
requirement that the defendant affirmatively prove prejudice. State v. Barrett, 371 Ark. 91,
263 S.W.3d 542 (2007). Under Strickland, a claimant must show that counsel’s performance
was deficient, and the claimant must also show that this deficient performance prejudiced his
defense so as to deprive him of a fair trial. Walker v. State, 367 Ark. 523, 241 S.W.3d 734
(2006) (per curiam). A petitioner must show that there is a reasonable probability that the
fact-finder’s decision would have been different absent counsel’s errors. Sparkman v. State,
373 Ark. 45, 281 S.W.3d 277 (2008). A reasonable probability is a probability sufficient to
undermine confidence in the outcome of the trial. Id.
The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts
that affirmatively support the claims of prejudice. See Viveros v. State, 2009 Ark. 548 (per
curiam). Neither conclusory statements nor allegations without factual substantiation are
sufficient to overcome the presumption that counsel was effective and do not warrant granting
postconviction relief. Eastin v. State, 2010 Ark. 275; Watkins, 2010 Ark. 156 , ___ S.W.3d
___. A court is not required to research or develop arguments contained in a petition for
postconviction relief. See Eastin, 2010 Ark. 275; see also Britt v. State, 2009 Ark. 569, ___
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Cite as 2010 Ark. 343
S.W.3d ___ (per curiam). Appellant here did not meet his burden of establishing that counsel
was ineffective under the Strickland standard.
The remainder of the petition filed in the trial court consisted of a series of conclusory
assertions of trial error and allegations of prosecutorial misconduct such as the claim that the
prosecutor made unspecified improper statements concerning appellant’s guilt and subjected
petitioner to “selective prosecution.” Claims of trial error, even those of constitutional
dimension, must be raised at trial and on appeal. Lee v. State, 2010 Ark. 261(per curiam); see
also Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam). Our postconviction
rule does not permit a direct attack on a judgment or substitute for an appeal. Hill v. State,
2010 Ark. 102 (per curiam) (citing Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992)
(per curiam)). The sole exception lies in claims raised in a timely petition that are sufficient
to void the judgment and render it a nullity. Polivka v. State, 2010 Ark. 152, ___ S.W.3d
___. Appellant did not contend, much less establish with factual substantiation and legal
authority, that any claim of trial error raised in the petition was sufficient to void the
judgment in his case. An argument with no citation to authority or convincing argument in
its support that cannot be sustained without further research on the part of the court is not
well taken. See Watkins, 2010 Ark. 156, ___ S.W.3d ___ (citing Weatherford v. State, 352 Ark.
324, 101 S.W.3d 227 (2003)).
Appeal dismissed; motion moot.
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