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Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and DIVISION II integrity of this document No. CR-20-308 2023.06.22 14:01:33 -05'00' 2023.001.20174 Opinion Delivered: February 24, 2021 BENJAMIN MICKEY PITTS APPELLANT APPEAL FROM THE GARLAND V. COUNTY CIRCUIT COURT [NO. 26CR-14-376] STATE OF ARKANSAS APPELLEE HONORABLE MARCIA R. HEARNSBERGER, JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Benjamin Pitts appeals the circuit court’s denial of his Rule 37 petition. We affirm.

A Garland County jury convicted Pitts of second-degree murder, two counts of first-

degree battery, possession of a firearm by certain persons, and aggravated residential burglary.

Pitts was sentenced to an aggregate term of eighty years in the Arkansas Department of

Correction. On direct appeal, Pitts raised two points. He argued that the circuit court erred

in denying his motion to dismiss for violation of his right to a speedy trial and in denying

his motion to suppress custodial statements made to his parole officer. We affirmed his

conviction in Pitts v. State,

,

, and denied Pitts’s petition

for rehearing. The mandate issued on April 2, 2019.

On April 22, Pitts, filed a pro se verified petition for Rule 37 relief, which the circuit

court found did not conform to Rule 37.1 and dismissed it without prejudice to allow Pitts

to file a conforming petition. Pitts refiled two more amended petitions, and both were dismissed without prejudice. On September 19, 2019, Pitts filed his fourth amended

petition, and on February 7, 2020, the circuit court denied Pitts’s petition. The circuit court

found that Pitts supplemented his petition without leave of the court in violation of Rule

37 and addressed and denied each of Pitts’s ineffective-assistance-of-counsel claims.

Pitts timely filed his notice of appeal.

As a preliminary matter the State urges our court to dismiss Pitts’s appeal, arguing

that we do not have jurisdiction. The State contends that the circuit court lost jurisdiction

to hear Pitts’s petition because he filed his fourth amended petition after the sixty-day

deadline for filing for Rule 37 relief. We disagree.

If an appeal was taken of the judgment of conviction, a petition claiming relief under

Rule 37 must be filed in the circuit court within sixty days of the date the mandate is issued

by the appellate court. Ark. R. Crim. P. 37.2(c)(ii). Before the court acts upon a petition

filed under this rule, the petition may be amended with leave of the court. Ark. R. Crim.

P. 37.2(e). Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and if they

are not met, the circuit court lacks jurisdiction to grant postconviction relief. Wright v. State,

. However, in Barrow v. State,

, the supreme court held that

jurisdiction is conferred on the circuit court when the appellant files a timely, verified

petition, and after that, the circuit court has jurisdiction to allow the appellant to file an

amended petition, pursuant to Ark. R. Crim. P. 37.2(e). In Barrow, as in the instant case,

the appellant initially filed a verified petition within the sixty-day time limit. The court

dismissed the petition without prejudice and ordered him to file a conforming petition

2 within ten days. Barrow filed his amended petition seven days later, which was a few days

after the sixty-day time limit. Our supreme court held that

jurisdiction was conferred on the circuit court when Barrow filed a timely, verified petition on December 2, 2010. See Ark. R. Crim. P. 37.2(c)(ii). It appears that the State is contending that the circuit court did not have jurisdiction of the matter because a petition in compliance with Rule 37.1(b) was not filed within sixty days of the date that the court of appeals had issued the mandate. Rule 37.1(b), however, is not jurisdictional in nature. Once jurisdiction was established by Barrow’s timely filing of a verified petition on December 2, 2010, the circuit court had discretion to allow Barrow to file an amended petition. See Ark. R. Crim. P. 37.2(e).

Barrow,

, at 5. The mandate for Pitts’s direct appeal issued April 2, and the

State concedes that he timely filed his first verified Rule 37 petition on April 22. With leave

of the court, Pitts filed three more amended petitions; thus, pursuant to Barrow and Rule

37.2, the circuit court had jurisdiction to hear Pitts’s Rule 37 petition. We proceed to the

merits and affirm.

When reviewing a circuit court’s ruling on a petitioner’s request for Rule 37.5 relief,

this court will not reverse the circuit court’s decision granting or denying postconviction

relief unless it is clearly erroneous. Kemp v. State,

,

(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 made.

.

When considering an appeal from a circuit court’s denial of postconviction relief on

a claim of ineffective assistance of counsel, the sole question presented is whether,

considering the totality of the evidence under the standard set forth by the Supreme Court

of the United States in Strickland v. Washington,

(1984), the circuit court clearly

3 erred in holding that counsel’s performance was not ineffective. Sparkman v. State,

,

(2008). In making this determination, we must consider the totality of

the evidence. Howard v. State,

,

(2006).

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,

. 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,

,

(2007). A petitioner making an ineffective-assistance-of-counsel

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

reasonableness. Springs v. State,

,

. A court must indulge in a

strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance.

.

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

petitioner’s defense that he was deprived of a fair trial.

. The petitioner

must show there is a reasonable 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,

,

. A reasonable

probability is a probability sufficient to undermine confidence in the outcome of the trial.

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

4 conviction resulted from a breakdown in the adversarial process that renders the result

unreliable.

. “[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,

. The circuit court has the discretion

to deny postconviction relief without a hearing, and it need not hold an evidentiary hearing

where it can be conclusively shown on the record, or on the face of the petition itself, that

the allegations have no merit. Ark. R. Crim. P. 37.3(a).

Pitts asserts many instances of ineffective assistance of counsel; however, none

presents grounds for reversal. First, Pitts contends that counsel was ineffective for failing to

challenge the probable cause for his arrest. The circuit court correctly denied Pitts’s

assertion, finding that such a claim is not cognizable pursuant to Rule 37. Generally, a

challenge to the validity of an arrest warrant for lack of probable cause is not cognizable in

a Rule 37 petition. Moten v. State,

. The allegation constitutes a direct

attack on the judgment of conviction rather than a collateral challenge to the judgment and

is not cognizable under Rule 37.1. Munnerlyn v. State,

. “[S]ome flaw in

the arrest procedure” does not vitiate an otherwise valid judgment and does not constitute

fundamental error sufficient to void a judgment.

at 2–3.

Second, Pitts claims that the circuit court erred in denying his Rule 37 petition on

the ground that counsel was ineffective for failing to preserve for review a challenge to the

seizure and search of his cell phone, which led to the admission of incriminating evidence

at his trial and his conviction. In its denial of Pitts’s petition, the circuit court found that

Pitts’s cell phone was seized by his parole officer incident to arrest for parole violations. An

5 officer making a lawful arrest may conduct a warrantless search of the accused and his

property. Ark. R. Crim. P. 12.1(d) (2020). Thus, counsel is not ineffective for failing to

preserve for appellate review a meritless argument. Wooten v. State,

, at 6–7,

(per curiam).

Third, Pitts argues that counsel failed to challenge both independent bases for the

circuit court’s ruling that his incriminating statement to his parole officer was admissible.

The circuit court found that Pitts’s statement to his parole officer was spontaneous and not

the result of interrogation. Also, the circuit court found that Pitts was aware of his Miranda

rights when his parole officer asked him if he was an accessory to capital murder. On appeal,

counsel argued that Pitts’s statement was the result of an interrogation and was not

spontaneous; however, counsel did not challenge the second independent basis for the

circuit court’s ruling—that Pitts was aware of his Miranda rights. We affirmed the circuit

court’s ruling for two reasons: (1) Pitts did not challenge both independent bases for the

ruling; and (2) there is no constitutional requirement that suspects in custody must be read

their Miranda rights every time they are questioned. Pitts was Mirandized five days before

the parole officer asked him if he was an accessory to capital murder; therefore, it was not

necessary for his parole officer to inform him of his Miranda rights again. See Williams v.

State,

,

(2005). In denying Pitts’s ineffective-assistance-of-

counsel claim, the circuit court correctly found that Rule 37 does not provide an

opportunity for an appellant to reargue points that were settled on direct appeal. See Howard,

,

. Additionally, Pitts asserts that counsel failed to address a matter

related to his recorded confession not being played for the jury. Pitts also asserts that appellate

6 counsel stated that the “state had little to no evidence placing appellant at the crime scene”

and yet counsel failed to challenge the sufficiency of the evidence. As we stated above,

sufficiency of the evidence is not cognizable in postconviction proceedings. See Robertson v.

State,

,

.

Fourth, Pitts asserts that counsel failed to perform a pretrial investigation and that

because of this failure, the State’s evidence was not properly authenticated, and that evidence

led to the jury’s guilty verdict. Specifically, Pitts refers to witness Amanda Thornton’s

recorded interrogation that he claims counsel did not watch and unnamed potential

witnesses that counsel did not find. Pitts does not explain what evidence would have been

gathered from the interrogation recording, what witnesses could have been found, or what

testimony would have been given. Counsel has a duty to make a reasonable investigation

or to make a reasonable decision that makes particular investigations unnecessary; however,

when a petitioner under Rule 37.1 alleges ineffective assistance for failure to perform an

adequate investigation, he or she 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 outcome.

Bryant v. State,

,

(per curiam). The burden is entirely on the

claimant to provide facts that affirmatively support his or her claims of prejudice. Breeden v.

State,

,

, 626–27. 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

postconviction relief.

Here, Pitts made only conclusory statements without factual

7 support for his claim, and the circuit court did not err in finding that he had not presented

a meritorious Rule 37 claim.

Fifth, Pitts argues that counsel failed to present evidence favorable to his case that

would have outweighed the State’s incriminating evidence. Here, Pitts attempts to argue

the sufficiency of this evidence, which, as we stated above, is not cognizable in a Rule 37

petition. See Dennis v. State,

,

.

Sixth, Pitts claims that counsel was ineffective by failing to object to the prosecutor’s

aiding a witness in her presentation of perjured testimony and by failing to object to the

State’s representation of photographs from his codefendant’s phone as originating from

Pitts’s phone. Pitts further claims that the State manipulated phone records to corroborate

the perjured testimony. The misconduct, Pitts argues, led to the jury’s guilty verdict. In

Ortega v. State,

,

, the supreme court held that a claim of

prosecutorial misconduct is an issue that could have been raised at trial and is not cognizable

in Rule 37 petitions. Accordingly, Pitts’s claims of prosecutorial misconduct are not a

meritorious basis for reversal.

Seventh, we address Pitts’s attempt to raise the issue of an alleged speedy-trial

violation in his Rule 37 appeal that was settled on direct appeal. Our court reviewed Pitts’s

claim of a speedy-trial violation and rejected it; thus, as we discussed above, matters settled

on direct appeal are not cognizable under Rule 37.

Eighth, Pitts claims he was not afforded a fair trial by a jury of his peers because of

counsel’s ineffective assistance. The circuit court rejected Pitts’s claim that counsel could

have requested a change of venue to ensure a jury of people his age and his vague assertion

8 that a different jury would not have known the victim, officers, and witnesses involved in

his case. To establish that the failure to seek a change in venue amounted to ineffective

assistance of counsel, a petitioner must offer some basis on which to conclude that an

impartial jury was not empaneled.

Broad claims that another jury somewhere else would

be fairer is the type of conclusory statement that is not cognizable under Rule 37. Moreover,

we have repeatedly held that “the decision of whether to seek a change of venue is largely

a matter of trial strategy and is therefore not an issue to be debated under Rule 37.” Shadwick

v. State,

,

, 727–28. Also, for the first time on

appeal, Pitts asserts that counsel failed to strike an unnamed juror who knew the victim and

“never said she could be fair.” Pitts’s appellate argument has been expanded from what was

presented to the circuit court, and “new arguments, including new factual substantiation,

cannot be raised on appeal.” Rayburn v. State,

, at 6,

.

Ninth, Pitts asserts that counsel was ineffective because he did not attempt to conceal

from the jury the fact that he is a convicted felon, which caused the jury to have prejudice

toward him. At a pretrial hearing, the court deemed Pitts’s statement to his parole officer

admissible, identifying Pitts as having been convicted of a previous crime. Faced with the

court’s decision, counsel could not have made a successful objection to the admission of the

information. A petitioner does not demonstrate the requisite prejudice for a claim of

ineffective assistance based on the failure to make an objection if he does not establish that

counsel could have made a successful objection. Davis v. State,

. In view of

9 the foregoing analysis, we affirm the circuit court’s denial of Pitts’s petition for Rule 37

relief.

Affirmed.

GRUBER and BARRETT, JJ., agree.

Benjamin Pitts, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.

10