Kenny Travis, Jr. v. State of Arkansas
Annotate this Case
Download PDF
Cite as 2010 Ark. 341
SUPREME COURT OF ARKANSAS
No.
CR 08-1320
Opinion Delivered
KENNY TRAVIS, JR.
Appellant
v.
September 23, 2010
APPEAL FROM THE CIRCUIT
COURT OF MISSISSIPPI COUNTY,
CHICKASAWBA DISTRICT, CR
2006-202, HON. VICTOR L. HILL,
JUDGE
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
In 2006, a jury found appellant Kenny Travis, Jr., guilty of capital murder and
aggravated robbery and sentenced him to an aggregate term of life without parole. This court
affirmed the judgment. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). Appellant
timely filed a pro se petition for postconviction relief under Arkansas Rule of Criminal
Procedure 37.1 (2010) that was denied. We granted appellant’s motion, filed by retained
counsel, for a belated appeal. Travis v. State, 375 Ark. 244, 289 S.W.3d 474 (2008) (per
curiam).
On appeal, appellant raises two points, as follows: (1) the trial court erred in denying
the Rule 37.1 petition without an evidentiary hearing; (2) the order entered did not contain
findings of fact as required by Arkansas Rule of Criminal Procedure 37.3 (2010). We find
no reversible error and affirm.
Cite as 2010 Ark. 341
The circuit court need not hold a hearing on a Rule 37.1 petition when the petition
and the files and the records of the case conclusively show that the petitioner is entitled to no
relief. Ark. R. Crim. P. 37.3(a). Under Rule 37.3(a), the trial court is required to make
written findings to that effect, specifying any parts of the files or records that are relied upon
to sustain the court’s findings. Id.; see also Polivka v. State, 2010 Ark. 152, ___ S.W.3d ___.
Here, the trial court made only broad, general findings that the evidence was overwhelming
and that appellant received a fair trial, without addressing the individual allegations listed.
This court will affirm the denial of a Rule 37.1 petition notwithstanding the circuit judge’s
failure to make adequate written findings under Rule 37.3 in two circumstances, as follows:
(1) where it can be determined from the record that the petition is wholly without merit; (2)
where the allegations in the petition are such that it is conclusive on the face of the petition
that no relief is warranted. Shaw v. State, 2010 Ark. 112 (per curiam). Here, regardless of the
sufficiency of the trial court’s findings in the order, we can determine from the record that
the petition was wholly without merit.1
Appellant asserts that this court may not make such a determination in this case,
“based on the cold record,” suggesting without citation that our precedent calls for an
evidentiary hearing in Rule 37.1 proceedings in capital cases. Appellant was tried for capital
murder, but the State did not seek the death penalty. It is true that this court has recognized
that the death penalty is a unique punishment that demands unique attention to procedural
safeguards. Collins v. State, 365 Ark. 411, 231 S.W.3d 717 (2006) (citing Robbins v. State, 354
Ark. 1, 114 S.W.3d 217 (2003)); see also Ark. R. Crim. P. 37.5 (2010). The same
considerations are not present in this case because the jury was not instructed concerning the
death penalty and appellant was not sentenced to death. As we explain, and despite
appellant’s contention to the contrary, the claims here may be resolved by review of the
record. Appellant appears to suggest that factual findings are needed to determine whether
trial counsel acted in accord with reasonable trial strategy, but the analysis here does not
1
-2-
Cite as 2010 Ark. 341
In the petition, appellant alleged ineffective assistance of counsel for failure to act to
ascertain the time of the victim’s death in order to prepare an alibi defense, failure to object
to an incorrect statement in the information concerning the date of the charged crime, failure
to obtain a ruling as to the admission of a cell phone into evidence, failure to object to
testimony by witnesses not excluded from the courtroom during testimony, and failure to
object to the use of perjured testimony by the prosecution. Appellant also raised claims of
prosecutorial misconduct, double jeopardy, actual innocence, actual and constructive denial
of counsel, and denial of due process.
A number of appellant’s claims are conclusory, not supported with a factual basis, or
are not claims cognizable in a Rule 37.1 proceeding. Prosecutorial misconduct is not a claim
cognizable in a Rule 37.1 petition. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A
claim of actual innocence is a direct attack on the judgment and a challenge to the sufficiency
of the evidence that is not cognizable in a Rule 37.1 proceeding. See Bell v. State, 2010 Ark.
65, ___ S.W.3d ___ (per curiam). Appellant’s claims of actual and constructive denial of
counsel and denial of due process were stated in the petition as bare, conclusory allegations
without factual development of any kind. Conclusory statements cannot be the basis of
postconviction relief. State v. Brown, 2009 Ark. 202, ___ S.W.3d. ___.
Even those claims in the petition that contained some factual allegations failed to allege
facts sufficient to support the claim. Appellant alleged a double jeopardy violation in that he
require a finding that counsel made a strategic decision.
-3-
Cite as 2010 Ark. 341
was convicted of capital murder and aggravated robbery when the robbery charge was used
to prove the capital murder charge. The circuit court would not have had authority to
sentence appellant for a charged felony and the underlying felony under prior law. See Clark
v. State, 373 Ark. 161, 282 S.W.3d 801 (2008) (citing Walker v. State, 353 Ark. 12, 110
S.W.3d 752 (2003)). Under the law applicable here, however, separate convictions and
sentences are authorized for capital murder and any felonies utilized as underlying felonies for
the murder. Ark. Code Ann.§ 5-1-110(d)(1)(A) (Supp. 2007); Harper v. State, 359 Ark. 142,
194 S.W.3d 730 (2004).
Appellant’s claims of ineffective assistance of counsel were also without merit.
Appellant provided only conclusory allegations in support of his claim that counsel should
have objected to perjured testimony; he did not offer any basis for a successful objection to
the testimony or supporting facts for the claim that the testimony was false. Ineffectiveness
claims alleging deficiency in attorney performance are subject to a general requirement that
the defendant affirmatively prove prejudice. Britt v. State, 2009 Ark. 569, ___ S.W.3d ___
(per curiam). As a reflection of this requirement, counsel is not ineffective for failing to make
an argument that is meritless. Johnson v. State, 2009 Ark. 553 (per curiam). The petition must
provide facts that affirmatively support an appellant’s claims, and conclusory statements cannot
form the basis of postconviction relief. Id. Appellant failed to present a meritorious claim
because he failed to demonstrate that counsel could have made a meritorious objection.
Appellant did set out a basis for an objection to the admission of the cell phone into
evidence. In the petition, appellant asserts that counsel was ineffective because counsel should
-4-
Cite as 2010 Ark. 341
have renewed his motion to exclude the evidence on the basis that the chain of custody was
not properly established. Even so, appellant failed to set forth facts to support that allegation
in that he did not state facts to demonstrate any prejudice from the alleged error.
The standard of review on appeal from a trial court’s denial of postconviction relief as
to a claim of ineffective assistance of counsel is the standard set forth by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). French v. State, 2009 Ark.
443 (per curiam). Under the Strickland test, 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. Id., at 3; Walker v. State, 367 Ark. 523, 241 S.W.3d
734 (2006) (per curiam). A claim of ineffective assistance must therefore state facts sufficient
to satisfy both prongs of the Strickland test.
The cell phone was admitted into evidence to provide the jury with statements
appellant made that were recorded by one of the witnesses. The witness also testified about
the statements that appellant made, and the defense cross-examined the witness both about
the time that he held the phone before turning it over to the police and the potential for
tampering with the phone. Even if appellant had established his allegation of error in failing
to contest admission of the phone, he did not demonstrate that he could have established that
the admission of the phone prejudiced his defense.
Appellant’s claim of ineffective assistance as a result of failure by counsel to oppose or
appeal the admission of testimony from two witnesses was based on appellant’s assertion that
the witnesses were not subject to the sequestration rule, and the defense was surprised by the
-5-
Cite as 2010 Ark. 341
evidence.2 Neither basis demonstrates a potentially meritorious objection. See Isbell v. State,
326 Ark. 17, 931 S.W.2d 74 (1996) (the State is not required to provide the defense with the
names of rebuttal witnesses until the defense presents its case); Ford v. State, 296 Ark. 8, 753
S.W.2d 258 (1988) (no error in permitting testimony of rebuttal witness despite sequestration
rule).
Appellant’s final claims concern counsel’s failure to object to the incorrectly stated date
of the crime in the information and failure to learn the correct time and date of death in order
to prepare an alibi defense. The information and amended information filed in this case
indicate that the charges occurred “on or about the 24th day of June, 2005,” and our opinion
on direct appeal references the date noted in the information. Appellant contends that the
actual date of the crime was June 25, 2005, and that counsel should have taken steps to obtain
the coroner’s report and used it to question and impeach witnesses, should have ascertained
the exact time and date of the death of the victim, should have requested a bill of particulars
regarding the date and time of the murder, and should have provided the defendant with a
reasonable opportunity to prepare an alibi defense.
Generally, the time a crime is alleged to have occurred is not of critical significance
unless the date is material to the offense. Kelley v. State, 375 Ark. 483, 292 S.W.3d 297
(2009).
In this case, it was apparent that the victim had significant notoriety in the
community; learning of the murder or the police response to the call concerning the murder
Appellant did oppose the testimony of each witness, although in one case on other
bases than discussed here, but did not contest the adverse ruling on appeal.
2
-6-
Cite as 2010 Ark. 341
were events used as reference points for much of the testimony. Under the circumstances of
appellant’s trial, he did not established that the time of the murder was of critical significance.
Appellant did testify at trial that he was in Memphis at the time the murder occurred
in Osceola. The defense was clearly aware prior to trial that the shooting actually occurred
on June 25. A letter from appellant written during the time he was incarcerated prior to trial
identifies the date “this stuff suppose [sic] to happen” as June 25, 2005. Another such letter
also indicates more generally that appellant was aware of the date and the need to establish an
alibi for it. In the petition, appellant did not identify any specific testimony that would have
been impeached by reference to June 25 as the date of the murder, nor does our review of
the record disclose any. Any inconsistencies in the testimony that might have been raised by
discrepancies in the specific hour and time of the death do not appear significant.
Because, with reference to the record in this case, appellant clearly failed to set forth
facts in the petition that would establish prejudice or otherwise support the claims cognizable
under Rule 37.1, the petition was wholly without merit, appellant was clearly entitled to no
relief, and no hearing was warranted. Regardless of the sufficiency of the trial court’s
findings, we therefore affirm the denial of postconviction relief.
Affirmed.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
