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SUPREME COURT OF ARKANSAS
No. CR-82-121
Opinion Delivered March 19, 2015
ROOSEVELT ABERNATHY PRO SE PETITION TO REINVEST
PETITIONER JURISDICTION IN THE TRIAL
COURT TO CONSIDER A PETITION
FOR POSTCONVICTION RELIEF
V. PURSUANT TO ARKANSAS RULE OF
CRIMINAL PROCEDURE 37.1 AND
MOTION TO INTRODUCE EXHIBITS
STATE OF ARKANSAS AS EVIDENCE
RESPONDENT [PULASKI COUNTY CIRCUIT COURT,
NO. 60CR-82-316]
PETITION DISMISSED; MOTION
MOOT.
PER CURIAM
In 1982, petitioner was found guilty by a jury of capital felony murder and first-degree
battery. An aggregate sentence of life imprisonment without parole was imposed. We affirmed.
Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983).
After the judgment was affirmed on appeal, petitioner sought leave from this court to
proceed in the trial court with a petition pursuant to Arkansas Rule of Criminal Procedure 37.1
(1982). The petition was denied. Abernathy v. State, CR-82-121 (Ark. Jan. 14, 1985) (unpublished
per curiam).
In 2013, petitioner filed a second petition here to proceed under the Rule, raising a series
of allegations of ineffective assistance of counsel. Under the applicable provision of the Rule,
petitioner was required to raise all issues for postconviction relief in the original petition unless
that petition was denied without prejudice. Ark. R. Crim. P. 37.2(b) (1982). Petitioner’s original
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petition was not denied without prejudice to filing a subsequent petition. The petition was
dismissed by syllabus entry on May 23, 2013.
Now before us is petitioner’s third petition to reinvest jurisdiction in the trial court to
consider a petition under the version of Arkansas Rule of Criminal Procedure 37.1 in effect
when he became eligible to file a petition. As stated, petitioner was required to raise all issues
for postconviction relief in the original petition. Also before us is petitioner’s motion to
introduce some exhibits as evidence. Because petitioner is not entitled to proceed again under
the Rule, the petition is dismissed. The motion to introduce exhibits is moot.
Petitioner argues, as he did in his second petition, that he should be permitted to proceed
again under the Rule pursuant to Martinez v. Ryan, 132 S. Ct. 1309 (2012) and related cases,
arguing that his attorney at trial and on direct appeal was ineffective. Petitioner’s reliance on
Martinez and its progeny is misplaced.1 The Martinez Court held that, when state law requires a
prisoner to use a collateral attack rather than a direct appeal to raise a claim that his trial attorney
was not effective under the Sixth Amendment, the prisoner’s failure to comply with state rules
in bringing his collateral attack on the judgment will no longer bar a federal judge from granting
habeas relief on that claim, if the prisoner had no attorney to represent him in the collateral
proceeding or his attorney was ineffective and if the petition filed in the state court had a
meritorious claim. In Trevino v. Thaler, 133 S. Ct. 1911 (2013), the Court extended its holding in
Martinez to cases in which a state’s procedural framework make it unlikely in a typical case that
1
Petitioner also invokes Arkansas Code Annotated section 16-91-202 (Repl. 2006) as
authority for his argument that he is entitled to proceed under the Rule, but the statute is not
availing as it applies to cases in which the petitioner was sentenced to death.
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a defendant would have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal. Neither the ruling in Martinez nor the ruling in Trevino, or
subsequent cases based on the rulings in those cases, however, dictated that there cannot be
limits placed on the number of petitions for postconviction relief that may be filed in state court
by one petitioner. See Smith v. State, 2015 Ark. 23, ___ S.W.3d ___ (per curiam).
While there is no constitutional right to a postconviction proceeding, when a state
undertakes to provide collateral relief, due process requires that the proceeding be fundamentally
fair. Davis v. State, 2010 Ark. 366 (per curiam). The fundamental requirement of due process
is the opportunity to be heard at a meaningful time and in a meaningful manner. Id. Due
process does not require courts to provide an unlimited opportunity to present postconviction
claims. Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam); Maulding v. State, 299 Ark.
570, 776 S.W.2d 339 (1989) (per curiam). This court has held that certain procedural
requirements or other limitations on postconviction relief do not violate the right to due process.
See, e.g., Croft v. State, 2010 Ark. 83 (per curiam) (A petition under the rule not verified in
accordance with Rule 37.1(c) is subject to dismissal.); Robinson v. State, 295 Ark. 693, 751 S.W.2d
335 (1988) (per curiam) (Requiring a petition for postconviction relief to meet certain threshold
requirements is fundamentally fair.). Placing certain limitations on the length and form of
petitions under the Rule is an entirely reasonable restriction on petitioners seeking
postconviction relief. See Davis, 2010 Ark. 366. While this court is not unmindful of the
holdings of Martinez and Trevino, neither requires this court to forgo procedural rules that serve
to streamline the process by which petitioners present claims for postconviction relief to the trial
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courts. Smith, 2015 Ark. 23, ___ S.W.3d ___ . The prompt and orderly disposition of petitions
for postconviction relief requires standards to control the content, length and form of the
petitions, and the number of such petitions that each petitioner is permitted to file. Id.; see also
Maulding, 299 Ark. 570, 776 S.W.2d 339.
Petition dismissed; motion moot.
Roosevelt Abernathy, pro se petitioner.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for respondent.
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