James Kelley Haynes v. State of Arkansas
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ARKANSAS SUPREME COURT
No. CR 07407
Opinion Delivered
JAMES KELLEY HAYNES
Appellant
February 7, 2008
APPEAL FROM THE CIRCUIT COURT
OF SEBASTIAN COUNTY, FORT
SMITH DISTRICT, CR 2001936, HON.
JAMES MARSCHEWSKI, JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
In 2002, appellant James Kelley Haynes, who is also known as James Kelly Haynes, was
found guilty by a jury of rape and burglary and sentenced as a habitual offender to life and 480
months’ imprisonment. We affirmed. Haynes v. State, 354 Ark. 514, 127 S.W.3d 456 (2003), cert.
denied 541 U.S. 1047 (2004). Subsequently, appellant timely filed in the trial court a verified pro se
petition for relief pursuant to Ark. R. Crim. P. 37.1, and the trial court appointed counsel. After
conducting an evidentiary hearing, the trial court denied the petition, and appellant, still represented
by counsel, has lodged an appeal here from that order.
As his sole point on appeal, appellant argues that the trial court erred in its denial of the Rule
37.1 petition in that trial counsel was ineffective. He first claims that counsel failed to properly
prepare and defend him at trial. He also complains that counsel failed to prevent appellant from being
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unfairly tried by a raciallydiscriminatory jury. The trial court rejected both of these arguments.
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Appellant raised several additional issues in the original petition filed in the trial court but
did not raise them on appeal. Claims raised below but not argued on appeal are considered
abandoned. State v. Grisby, 370 Ark. 66, ___ S.W.3d ___ (2007) (citing Jordan v. State, 356
Ark. 248, 147 S.W.3d 691 (2004)).
We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly
erroneous. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A finding is clearly erroneous
when, although there was 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. Flores v.
State, 350 Ark. 198, 85 S.W.3d 896 (2002).
To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel’s
representation fell below an objective standard of reasonableness and that but for counsel’s errors,
the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984);
Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001) (per curiam). There is a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance. Noel v. State,
342 Ark. 35, 26 S.W.3d 123 (2000). To rebut this presumption, appellant must show that there is
a reasonable probability that the decision reached would have been different absent counsel’s errors.
Greene, supra. A reasonable probability is one that is sufficient to undermine confidence in the
outcome of the trial. Id.
Here, appellant argues that trial counsel did not properly prepare for trial or defend him in two
aspects: he failed to meet with appellant prior to trial to prepare a defense and he failed to discuss
the testimony of appellant’s wife with him. Regarding the former accusation, at the Rule 37.1
hearing, appellant complained that counsel met with him only five or six times prior to trial and that
was insufficient to mount a proper defense. In contrast, trial counsel testified at the hearing that trial
preparation for appellant’s case included personally meeting with appellant approximately ten times,
seeking discovery from the State including exculpatoryevidence, filing a motion to suppress evidence,
seeking DNA testing of evidence, accompanying appellant when a blood sample was drawn,
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interviewing witnesses and undertaking other actions necessary to properly defend appellant at trial.
As to the latter allegation, appellant claims that counsel failed to consult with him about Mrs.
Haynes’ trial testimony and failed to discover her prior inconsistent statements made to the police.
At the Rule 37.1 hearing, trial counsel explained that Mrs. Haynes gave at least two statements to the
police in which she denied that appellant was with her at the time the crimes were committed, but told
trial counsel that she had been mistaken as to the dates in those statements. According to counsel,
he and appellant discussed the need to establish an alibi for appellant and the potential use of the prior
inconsistent statements for impeachment by the State. Together, they agreed that it was in appellant’s
best interest to call Mrs. Haynes as a witness to establish his alibi and that her prior inconsistent
statements could be plausibly explained.
Conflicts in testimony are for the trial judge to resolve. Harper v. State, 359 Ark. 142, 194
S.W.3d 730 (2004). The trial judge is not required to believe the testimony of any witness,
particularly that of the petitioner since he or she is the person most interested in the outcome of the
proceedings. Bunch v. State, 346 Ark. 33, 57 S.W.3d 124 (2001). Where there is conflicting
evidence, the issue becomes one of credibility to be determined by the trial court. Rankin v. State,
338 Ark. 723, 1 S.W.3d 14 (1999).
Here, regarding trialpreparation, the trial court found counsel’s testimony to be more credible
than appellant’s testimony, and we defer to the trial court's determination of credibility on Rule 37.1
appeals. State v. Barrett, ___ Ark. ___, ___ S.W.3d ___ (Sept. 27, 2007) (citing Lee v. State, 343
Ark. 702, 38 S.W.3d 334 (2001)). As a result, appellant failed to meet his burden of proving that
trial counsel was unprepared for trial. The trial court also found that counsel discussed Mrs. Haynes’
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testimony with appellant, that counsel was prepared to address her prior inconsistent statements at
trial and that appellant and counsel made a tactical decision in calling her as witness in order to benefit
appellant’s defense. Tactical decisions cannot be the basis for a claim of ineffective assistance of
counsel. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). We cannot say the trial court’s findings
were clearly erroneous on these points, and appellant failed to show that trial counsel’s representation
fell below an objective standard of reasonableness or that he was prejudiced by counsel’s actions.
Appellant also contends that counsel failed to obtain additional peremptory challenges during
jury selection, causing appellant to be convicted by a raciallydiscriminatory jury. However, in the
Rule 37.1 petition and on appeal, appellant has failed to cite any legal or factual basis to support his
claim that the jury selection was premised upon exclusion of jurors based on race pursuant to Batson
v. Kentucky, 476 U.S. 79 (1986), or that counsel failed to take an available action to prevent a biased
jury from being seated. In a claim of ineffective assistance of counsel, the burden is on appellant to
provide facts to support his claims of prejudice and allegations without factual substantiation are
insufficient to overcome the presumption that counsel is effective. Nelson v. State, 344 Ark. 407, 39
S.W.3d 791 (2001) (per curiam). Further, conclusory statements cannot be the basis of
postconviction relief. Jackson v. State, 352 Ark. 359, 105 S.W.3d 352 (2003).
Here, appellant’s argument on this point amounted to mere conclusory statements. He has
provided no facts to support the allegation that the jury was biased against him because of his race,
or that trial counsel failed to undertake a viable legal maneuver to prevent appellant from being tried
by the jury that was empaneled.
Affirmed.
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