ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 21, 2001

DONALE PETER NAHLEN

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-1227

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR 96-854

HONORABLE JOHN PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Appellant, Donale P. Nahlen, and a female friend entered a pharmacy and robbed the pharmacist and his employee of drugs and cash at gunpoint. The victims were made to lie on the floor while they were bound with duct tape. They managed to free themselves before the culprits left the store. The pharmacist and appellant exchanged gunfire as a result of which appellant and an innocent customer-bystander were injured. Appellant and his companion were held until the police arrived. Appellant was eventually convicted of two counts each of kidnapping and aggravated robbery. Pursuant to the so-called "three strikes and you're out" sentencing statute, Ark. Code Ann. § 5-4-501(d) (Supp. 1995), appellant was sentenced to life in prison without parole. We affirmed appellant's convictions and sentence. Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997).

Appellant subsequently filed a petition pursuant to Ark. R. Crim. P. 37 alleging ineffectiveassistance of counsel. The trial court denied appellant's petition without a hearing. This appeal followed in which appellant argues that counsel failed to investigate and present a defense based upon diminished capacity due to heroin withdrawal; that counsel failed to present appellant's heroin addiction as mitigating evidence during the sentencing phase; that counsel failed to raise and preserve the issue of the admissibility of appellant's statements to the police; and that the trial court failed to hold an evidentiary hearing on appellant's petition. We affirm.

To prevail on any claim of ineffective assistance of counsel, the petitioner must show first that counsel's performance was deficient. Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995). This requires a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Id. Secondly, the petitioner must show that the deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the petitioner of a fair trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. In reviewing the denial of relief under Rule 37, this court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. The petitioner must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id.

For his first point on appeal, appellant argues that counsel was ineffective for failing toinvestigate and present a defense based upon diminished capacity due to heroin withdrawal. Appellant claims that he was suffering from heroin withdrawals and that several witnesses had extensive knowledge about appellant's condition and how it affected his ability to think clearly and determine right from wrong.

It is incumbent upon a petitioner to name the witnesses that he claims should have been investigated, provide a summary of their testimony and establish that the testimony would have been admissible into evidence. See Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984). An allegation which is general in nature with no showing of actual prejudice to the defense is not deserving of post-conviction relief. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). Here, appellant has set forth five names of potential witnesses; however, appellant has failed to provide a summary of their alleged testimony or whether the testimony would have been admissible evidence. In addition, appellant has simply set forth conclusory allegations with regard to the effects of heroin withdrawal and the legal significance of this condition as a defense. It is well settled that a ground for relief under Rule 37 which is entirely conclusory in nature is not sufficient to demonstrate that the petitioner is entitled to any relief under the rule. Bryant v. State, 323 Ark. 130, 913 S.W.2d 257 (1996); Brooks v. State, 303 Ark. 188, 792 S.W.2d 617 (1989). Petitions which state only a conclusion are patently deficient in that there can be no showing of actual prejudice to the petitioner without factual support for the allegations made by him. A showing of actual prejudice is necessary to warrant relief under the rule. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992); Spivey v. State, 299 Ark. 412, 773 S.W.2d 446 (1989). Becauseappellant has failed to demonstrate prejudice, we affirm.1

Next, appellant argues that counsel failed to use appellant's heroin addiction as a mitigator during the sentencing phase of appellant's trial. Appellant contends that he had an absolute right to present the evidence, as discussed in his first point, at sentencing as well as in the guilt phase of his trial. As we found in the first point, appellant has failed to submit any evidence, besides his own testimony, to support his allegation that he was suffering from heroin withdrawal or the effects of that condition as it relates to his mental capacity. There is no evidence presented in appellant's abstract or in his argument that would show that appellant was prejudiced by counsel's failure to present this alleged evidence as a mitigating factor.

For his third point on appeal, appellant asserts that counsel failed to raise and preserve the issue of the admissibility of appellant's statements. We do not reach the merits of appellant's argument because he has failed to abstract the statements. It is imperative in reviewing this point that appellant abstract the statements for our review in determining whether appellant was prejudiced. Appellant's failure to abstract these critical documents precludes this court from considering issues concerning them. Jackson v. State, 316 Ark. 509, 872 S.W.2d 400 (1994).

For his last point, appellant argues that the trial court erred in denying appellant an evidentiary hearing. Arkansas Rules of Criminal Procedure 37.3(a) and Rule 37.3(c) together provide that an evidentiary hearing should be held in a postconviction proceeding unless the files and record of the case conclusively show that the prisoner is entitled to no relief. Schneider v.State, 290 Ark. 454, 720 S.W.2d 709 (1986). A circuit court need not hold an evidentiary hearing when it can be conclusively shown on the record, or the face of the petition itself, that the allegations have no merit. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). As we have noted above, appellant has failed to provide any factual support for his conclusory allegations in his petition or on appeal. Thus, we cannot say that the trial court erred in denying appellant a hearing.

Affirmed.

1 Because we have affirmed this issue based on appellant's failure to demonstrate prejudice, we need not address appellant's attack on the trial court's alternate finding that counsel's decision not to pursue a certain defense was a matter of trial tactics or strategy.