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                                    Cite as
2019 Ark. 289
                    SUPREME COURT OF ARKANSAS
                                        No. CR-18-172



                                                Opinion Delivered October 24, 2019
FRED L. WILLIAMS
                               APPELLANT
                                          PRO SE APPEAL FROM THE DREW
V.                                        COUNTY CIRCUIT COURT; MOTION
                                          FOR DEFAULT JUDGMENT AND FOR
STATE OF ARKANSAS                         EXPEDIENT REVIEW OF APPEAL AND
                                 APPELLEE RELIEF OF CUSTODY; AMENDMENT
                                          TO DEFAULT JUDGMENT MOTION
                                          AND MOTION FOR EXPEDIENT
                                          REVIEW, DOUBLE JEOPARDY HELD;
                                          MOTION FOR SUBMISSION OF
                                          APPELLANT’S BELATED REPLY BRIEF
                                          [NO. 22CR-13-43]

                                                HONORABLE SAM POPE, JUDGE

                                                AFFIRMED; MOTIONS MOOT.


                                JOHN DAN KEMP, Chief Justice

       Appellant Fred L. Williams brings this pro se appeal from the denial by the trial court

of his claims for postconviction relief that were raised pursuant to Rule 37.1 (2016) of the

Arkansas Rules of Criminal Procedure. Also pending before this court are Williams’s motion

for default judgment, for expedient review of appeal and relief of custody; “amendment to

default judgment motion and motion for expedient review, double jeopardy held”; and his

motion for submission of a belated reply brief. Because Williams raised claims that are not

cognizable in Rule 37.1 proceedings and also failed to establish prejudice as a basis to support

his multiple ineffective-assistance-of-counsel claims, we affirm the trial court’s order, which

renders Williams’s motions moot.
        Williams was found guilty of murder in the first degree and abuse of a corpse for which

an aggregate sentence of life imprisonment was imposed. Williams was sentenced as a habitual

offender. We affirmed the conviction and the sentence. Williams v. State,
2015 Ark. 316
,
468 S.W.3d 776
.

        Williams subsequently filed a timely petition for Rule 37.1 relief, contending that his

right to due process was violated as a result of juror misconduct, prosecutorial misconduct, and

an illegal search. Williams also raised multiple ineffective-assistance-of-counsel claims. Two

hearings were held on Williams’s Rule 37.1 petition. The trial court denied relief on the basis

that Williams had failed to provide sufficient supporting evidence to establish he had been

prejudiced under the standard set forth in Strickland v. Washington,
466 U.S. 668
 (1984), for a

determination of effective assistance of counsel.

        In this appeal, we consider only those claims that were raised in Williams’s Rule 37.1

petition and ruled on by the trial court. Gordon v. State,
2018 Ark. 73
,
539 S.W.3d 586
; State v.

Grisby,
370 Ark. 66
,
257 S.W.3d 104
 (2007). Those claims are in two categories—trial error

and allegations that trial counsel was ineffective. The claims of trial error are (1) that the

evidence presented at trial was the result of an illegal search and seizure; (2) that juror

misconduct occurred at the trial; and (3) that the prosecutor made improper comments to the

jury.   The claims of ineffective assistance of counsel are (1) that trial counsel failed to

investigate the affidavit supporting the search warrant; (2) that trial counsel failed to

thoroughly investigate the AT&T phone records; (3) that trial counsel failed to rebut the

testimony of the medical examiner, Dr. Adam Craig; (4) that trial counsel failed to object to

the prosecutor’s conduct; and (5) that trial counsel failed to preserve or raise issues on appeal.
                                                 2
                                       I. Trial-Error Claims

       Rule 37 was not intended to provide a method for the review of mere error in the

conduct of the trial or to serve as a substitute for a direct appeal of the judgment. Lane v. State,
2019 Ark. 5
,
564 S.W.3d 524
; Hulsey v. State,
268 Ark. 312
,
595 S.W.2d 934
 (1980). Claims

of an illegal search, juror misconduct, and prosecutorial misconduct cannot be raised in a Rule

37 proceeding. Howard v. State,
367 Ark. 18
,
238 S.W.3d 24
 (2006); Cigainero v. State,
321 Ark. 533
,
906 S.W.2d 282
 (1995). Therefore, the only cognizable claims are the ineffective-

assistance-of-counsel claims that Williams raised below and reasserted on appeal.

                                      II. Strickland Standard

       Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set

forth in Strickland,
466 U.S. 668
. McClinton v. State,
2018 Ark. 116
,
542 S.W.3d 859
. 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.”
Id.
 at 3–4,
542 S.W.3d at 862
 (quoting

Strickland,
466 U.S. at 686
). To prevail on a claim of ineffective assistance of counsel, the

petitioner must show that (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced his defense.
Id.
   Unless a petitioner makes both showings, the

allegations do not meet the benchmark on review for granting relief on a claim of ineffective

assistance.
Id.
 A court need not address both components of the inquiry if the petitioner

makes an insufficient showing on one. Carter v. State,
2015 Ark. 166
,
460 S.W.3d 781
. In


                                                 3
order to demonstrate prejudice, 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. Douglas v. State,
2018 Ark. 89
,
540 S.W.3d 685
.       A reasonable probability is a probability sufficient to undermine

confidence in the outcome of the trial.
Id.
 Conclusory statements that counsel was ineffective

cannot be the basis for postconviction relief.
Id.

                                      III. Standard of Review

       This court reviews the trial court’s decision on a Rule 37.1 petition for clear error.

Russell v. State,
2017 Ark. 174
,
518 S.W.3d 674
. A finding is clearly erroneous when, although

there is evidence to support it, the appellate court, after reviewing the totality of the evidence,

is left with the definite and firm conviction that a mistake has been committed. Polivka v. State,
2010 Ark. 152
,
362 S.W.3d 918
. When considering an appeal from a trial court’s denial of a

Rule 37.1 petition based on ineffective assistance of counsel, 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, the trial court clearly erred in holding that counsel’s performance

was not ineffective. Carter,
2015 Ark. 166
,
460 S.W.3d 781
.

                                  IV. Evidence Adduced at Trial

       Before addressing the allegations of ineffective assistance of counsel, it is necessary to

recite the evidence adduced at Williams’s trial based on a review of the direct-appeal record.1



       1
        This court may take judicial notice in postconviction proceedings of the record on
direct appeal without need to supplement the record. Lukach v. State,
2018 Ark. 208
,
548 S.W.3d 810
.
                                                4
On the morning of April 5, 2013, Williams’s girlfriend, Tangela Walton, was observed by a

witness, Varetta Butcher, engaged in a heated conversation on her cell phone with an

unidentified person. Later that day, Walton was reported missing by family members, and

police questioned Williams, who denied any knowledge of Walton’s whereabouts. However,

Williams subsequently admitted to investigators that he knew where Walton’s body was

buried. In his final statement to investigators, Williams explained that Walton had called him

on the morning of April 5 to ask if he would like to have sex. He agreed, picked her up, and

the two went to Williams’s home where they engaged in what Williams described as “freaky”

sex that included tying Walton up and placing a plastic bag over her head. Williams stated

that the two were engaging in sex when he had a seizure and “fell out” on Walton, accidently

suffocating her. Williams admitted that when he was unable to revive her, he panicked and

carried Walton to a wooded area outside his home and buried her. Williams led investigators

to the site where Walton was buried.

                            V. Ineffective-Assistance-of-Counsel Claims

       In his first ineffective-assistance-of-counsel claim preserved for review, Williams argues

that trial counsel erroneously failed to investigate alleged flaws in the affidavit for the search

warrant. Specifically, Williams asserts that investigators had misrepresented and embellished

statements that Butcher had given to them in the affidavit for the search warrant. Williams

alleges that this error by counsel was prejudicial because the evidence obtained as a result of

the search would have been suppressed had trial counsel performed a more thorough

investigation. Because nothing seized from the search was introduced into evidence at the



                                                5
trial, Williams has failed to demonstrate prejudice arising from trial counsel’s failure to

investigate the search-warrant affidavit.2 McClinton,
2018 Ark. 116
,
542 S.W.3d 859
.

       For his second claim of attorney error, Williams asserts that trial counsel failed to

thoroughly investigate the AT&T phone records that had been introduced into evidence in

conjunction with Butcher’s testimony. Williams contends that the AT&T phone records

revealed that Walton had spoken to other individuals on the day that she died. The trial

record shows that Butcher testified that the argument she had overheard lasted for at least

fifteen minutes, and the AT&T records show that the only lengthy call documented by AT&T

during that time frame took place between Walton and Williams.             Again, there is no

demonstration that drawing the jurors’ attention to the additional calls noted in the AT&T

records would have given rise to a reasonable probability that the outcome of the trial would

have been different. Douglas,
2018 Ark. 89
,
540 S.W.3d 685
. Whether Walton spoke with or

even argued with another individual on the day that she died is not material in view of

Williams’s admission that he caused Walton’s death and then buried her.

       Williams’s third claim of ineffective assistance of counsel involves the testimony of the

medical examiner, Dr. Adam Craig. Williams contends that trial counsel failed to thoroughly

investigate Dr. Craig’s conclusions that Walton had a number of healing injuries at the time of

her death. However, the trial record reveals that Dr. Craig testified that he had discovered and

noted the presence of old injuries as well as new injuries during the course of the autopsy.

Williams also argues that investigators misled Dr. Craig when they informed him that

       2
         Williams asserts that his DNA profile was obtained from materials seized in the
“illegal” search. However, the trial record contains a forensic report that Williams’s DNA was
obtained from an oral swab.
                                               6
Williams admitted that he and Walton were engaging in rough sex when Walton died.

Williams insists that this description of “rough” sex instead of “freaky” sex was the basis for

Dr. Craig’s conclusion that Walton’s death was a homicide. Williams fails to establish a

material difference between “rough” and “kinky”—the terms used to characterize his sexual

activities with Walton. Dr. Craig testified that his conclusion was based primarily on the

number of fresh injuries sustained by Walton at the time of her death. Williams’s claims

regarding Dr. Craig’s opinion and testimony do not demonstrate that counsel’s representation

was deficient. McClinton,
2018 Ark. 116
,
542 S.W.3d 859
.

        For his fourth claim, Williams contends that trial counsel failed to object to the

prosecutor’s improper comments made during opening statement and closing argument. At

the first hearing on his petition, Williams described the prosecutor’s comments that Williams

alleged were improper. Specifically, Williams contends that the prosecutor improperly told the

jury that Walton’s cell phone had been destroyed; that the prosecutor misstated the distance in

feet between the site of Walton’s grave and Williams’s home; that the prosecutor implied that

Williams’s DNA was found under Walton’s fingernail; that the prosecutor compared his

sexual experiences with Williams’s sexual experiences; that Williams was the only person to

speak to Walton on the day Walton died; and that the prosecutor told the jury that Williams

was a liar.

        The rule governing closing arguments mandates that such arguments must be confined

to issues raised and evidence introduced during the trial and all reasonable inferences and

deductions that can be drawn therefrom. Stewart v. State,
2012 Ark. 444
. There is no error

when comments made during closing arguments are inferable from testimony at trial.
Id.
                                              7
Furthermore, counsel are permitted to express their opinions to a jury so long as they do not

purposely arouse passion and prejudice. Jefferson v. State,
372 Ark. 307
,
276 S.W.3d 214

(2008). Because counsel may choose to refrain from objecting during opening statement and

closing argument as a matter of trial strategy, absent egregious misstatements, the failure to

object during closing argument and opening statement is within the wide range of permissible

professional legal conduct. Howard v. State,
367 Ark. 18
,
238 S.W.3d 24
 (2006). Finally, closing

remarks that require reversal are rare and require an appeal to the jurors’ passions. Rohrbach v.

State,
374 Ark. 271
,
287 S.W.3d 590
 (2008). There is nothing in the trial record to indicate

that the prosecutor’s comments during opening statement and closing argument were

unreasonable, egregious, and appealed to the jurors’ passions. Williams did not establish that

his trial counsel was ineffective when he chose not to raise meritless objections during the

prosecutor’s opening statement and closing argument. Howard,
367 Ark. 18
,
238 S.W.3d 24
.

       In his final point, Williams alleges that trial counsel failed to preserve or raise issues on

appeal. Williams does not describe the errors his attorney allegedly made during the appellate

process, and such conclusory allegations are not a basis for postconviction relief. Douglas,
2018 Ark. 89
,
540 S.W.3d 685
.

       Despite Williams’s claims of errors by the trial court, the prosecutor, and defense

counsel, the trial record clearly demonstrates that the jury did not believe Williams’s account

that Walton was unintentionally asphyxiated. The trial court did not clearly err when it found

that Williams had failed to demonstrate that he suffered any prejudice as a result of his

counsel’s alleged errors.



                                                8
Affirmed; motions moot.

Fred L. Williams, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Kent Holt, Ass’t Att’y Gen., for appellee.




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