ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JULY 9, 2001

LARRY MORRIS, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-1391

AN APPEAL FROM THE CIRCUIT COURT OF HOWARD COUNTY,

NO. CR- 97-15

HONORABLE CHARLES YEARGAN,

CIRCUIT JUDGE

AFFIRMED

Appellant, Larry Morris, Jr., was convicted of first-degree battery and robbery. He was sentenced to twenty-five years in the Arkansas Department of Correction. The court of appeals affirmed appellant's first-degree battery conviction and sentence. Morris v. State, CACR 97-1407 (Ark. App. September 9, 1998). Subsequently, appellant filed a petition pursuant to Ark. R. Crim. P. 37 alleging that he failed to receive effective assistance of counsel. The trial court denied appellant's petition. This appeal followed. Appellant raises five issues on appeal challenging counsel's performance. We find no merit in appellant's arguments and affirm.

The criteria for assessing the effectiveness of counsel were enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel, he must show that counsel's representation fell below an objective standard of reasonableness andthat counsel's deficient performance prejudiced his defense. Judicial review of counsel's performance must be highly deferential, and a fair assessment of counsel's performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's conduct, and to evaluate the conduct from counsel's perspective at the time. Slocum v. State, 332 Ark. 207, 964 S.W.2d 388 (1998); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). A reviewing court must indulge a strong presumption that the conduct falls within the wide range of reasonable professional assistance. Id. 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. Id.; 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. Strickland, supra; Thomas, supra.

First, appellant argues that trial counsel was ineffective for failing to argue that appellantwas illegally arrested. Specifically, appellant contends that counsel should have argued that appellant had been improperly held for more than forty-eight hours without a judicial determination of reasonable cause. We do not reach the merits of this issue because Rule 37 does not provide an avenue for attacking an otherwise valid conviction on the basis of an illegal arrest. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974). Moreover, the petitioner has provided us with no showing of prejudice.

For his second argument on appeal, appellant submits that counsel failed to request a pretrial, line-up identification to determine whether the victim could identify appellant. This argument by appellant fails because he has not demonstrated how he was prejudiced especially since the victim identified appellant at trial. 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). Appellant argues, however, that counsel was also ineffective in failing to question the reliability of the in-court identification. This is a conclusory allegation that is not substantiated with the facts. Long v. State, 294 Ark. 362, 742 S.W.2d 942 (1988). When a petitioner under Rule 37 asserts that his counsel was ineffective, he is responsible for providing factual support for the allegation. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985). Counsel is presumed effective, Strickland, supra, and allegations without substantiation are insufficient to overcome the presumption. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1993).

Appellant also argues that counsel failed to participate in approximately half of appellant's trial. Specifically, appellant contends that counsel refused to participate in voir dire, refused to make an opening statement, and refused to cross-examine the first two witnesses against appellant. The record indicates that counsel did not refuse to conduct voir dire, or make an openingstatement, or cross-examine the first two witnesses. At the Rule 37 hearing, counsel gave reasonable explanations for each occurrence alleged above. These challenges by appellant all involve issues that concern trial strategy. With issues that concern strategy, we will not substitute our own notions of strategy for those of the practitioner in Rule 37 cases. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

For his last point, appellant argues that counsel refused to communicate with him by not answering appellant's questions or allowing appellant to participate in his own defense. Again, appellant has set forth a conclusory allegation without any factual support. Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985).

Affirmed.