ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 10, 2002

DANA DANIEL THETFORD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 99-1352

AN APPEAL FROM THE CIRCUIT COURT OF CRAIGHEAD COUNTY,

NO. CR 96-359

HONORABLE SAMUEL TURNER,

CIRCUIT JUDGE

AFFIRMED

Appellant, Dana Daniel Thetford, was found guilty by a jury of attempted first-degree murder and was sentenced to thirty years in the Arkansas Department of Correction. The court of appeals affirmed the conviction. Thetford v. State, CACR 97-601 (Ark. App. February 25, 1998). Following the court of appeals decision, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. A hearing was held on appellant's petition; however, the trial court denied relief. This appeal followed.

For his first point on appeal, appellant contends that trial counsel was working under a conflict of interest because he was engaged to a deputy prosecutor at the time of trial. Appellant argues that there was an appearance of impropriety that denied him of a fair trial. We disagree.

As with any claim of ineffective assistance of counsel, the petitioner has the burden of providing factual support to demonstrate that the conflict of interest adversely affected counsel's performance. See Neff v. State, 287 Ark. 88, 696 S.W.2d 736 (1985); Smith v. State, 264 Ark. 329,571 S.W.2d 591 (1978). A petitioner who collaterally attacks his conviction under Rule 37 is required to show that he suffered some actual prejudice arising from a specific error by counsel. Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). Prejudice is presumed from a conflict of interest only when the defendant demonstrates that an actual conflict of interest adversely affected his lawyer's performance. Sheridan v. State, 331 Ark. 1, 959 S.W.2d 29 (1998). Appellant cannot prevail on this issue because he has not shown an actual conflict of interest or that any perceived conflict of interest adversely affected trial counsel's representation of him. There is no indication in the record that the deputy prosecutor engaged to trial counsel had any involvement in the prosecution of appellant's case. In fact, trial counsel testified that he informed his fiancé to "stay away" from appellant's case. In the absence of a showing of prejudice, we cannot say that the circuit court's decision is clearly erroneous.

Next, appellant argues that trial counsel was ineffective for failing to fully inform appellant of the consequences of waiving an insanity defense. Appellant contends that counsel should have known and indicated to appellant that a "not guilty"defense and an insanity defense could be presented together at trial. When reviewing this point, we discovered that appellant failed to raise this argument in his Rule 37 petition and at the Rule 37 hearing. Our general rule is that specific allegations of ineffectiveness of counsel must be pleaded, and specific issues of ineffectiveness of counsel cannot be raised for the first time on appeal. Tisdale v. State, 311 Ark. 220, 227, 843 S.W.2d 803, 807 (1992). A court will not consider matters outside the scope of a Rule 37 petition. Morgan v. State, 296 Ark. 370, 757 S.W.2d 530 (1988). Because appellant failed to raise this issue below, we decline to address it.

For his third point on appeal, appellant argues that trial counsel failed to fully explore and pursue the apparent likelihood that the crime scene and facts were manufactured by the police toinculpate appellant. In his Rule 37 petition, appellant raised the specific argument that counsel was ineffective for not exploring the time problem with the offense and the physical evidence. Appellant argued that the critical issue in the case was who fired the first shot and that the line of fire of the bullets did not match the testimony of the officer. Appellant contended that the discrepancy in this evidence would have undermined the credibility of the officer and shown that the police had investigated the case with the view of protecting the police officer. On appeal, appellant expands his argument by challenging trial counsel's cross-examination of Deputy Jon Moore; by questioning trial counsel's failure to ask specific questions; by challenging trial counsel's failure to exploit the lack of fingerprint and gunshot residue evidence; by arguing that trial counsel failed to ask to see the coat that appellant was wearing the night of the shooting; and by contesting trial counsel's failure to investigate the nature of appellant's wound. Because these points were not raised in appellant's petition or at the hearing, we decline to address them for the first time on appeal. See Morgan v. State, 296 Ark. 370, 757 S.W.2d 530 (1988).

Appellant's arguments that trial counsel failed to explore the time line of the case and failed to explore whether the case was investigated in a manner protecting Deputy Moore are before us. Postconviction relief may be granted on the basis of ineffective assistance of counsel if the petitioner proves that (i) counsel's performance was deficient, and (ii) counsel's deficient performance prejudiced the actual outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).

The petitioner must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Moreover, the counsel's acts and omissions are viewed from the counsel's perspective at the time of trial. Wainwright, 307Ark. 569, 823 S.W.2d 449; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The petitioner must overcome the strong presumption of competency by clear and convincing evidence showing that he was prejudiced and that the prejudice effectively denied him a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

At the Rule 37 hearing, trial counsel testified that there was never an issue regarding evidence or what happened the day of the incident. Trial counsel also said that there was never an issue regarding at what time events occurred. According to counsel, he and appellant discussed the events, and appellant's version was on track with the detective's version of events. Counsel testified that there was nothing in appellant's explanation that lead counsel to have any suspicions or reasons to believe that police had manufactured testimony or withheld information to get their stories straight. In addition, trial counsel said that appellant's story was not significantly different than Deputy Moore's testimony at trial.

After the Rule 37 hearing, the circuit court found that trial counsel was not aware of any time line problem or discrepancy in the evidence based on appellant's version of events. Therefore, the circuit court found that the questioning of witnesses was a matter of trial tactics and strategy and did not provide a basis for an ineffective assistance claim. Upon a review of the record, we cannot say that the circuit court's decision is clearly erroneous. It is apparent that appellant did not give any indication that the police had manufactured the evidence. In fact, appellant consistently admitted to being involved in the shooting, and his version of events basically mirrored those of the police involved in the case.

Appellant argues that had trial counsel thoroughly cross-examined witnesses the questionof whether evidence was manufactured would have been more plausible. As the circuit court found, the manner of questioning a witness is by and large a very subjective issue about which different attorneys could have many different approaches. Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for post-conviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

For his last point, appellant argues that the trial court erred in rejecting the claim that a juror was related to a sheriff's deputy with knowledge of the case. This claim is not cognizable under Rule 37. Juror misconduct based upon the failure to truthfully and accurately answer questions is not a proper subject for Rule 37 proceedings. Cigainero v. State, 321 Ark. 533, 906 S.W.2d 282 (1995).

Affirmed.

Imber, J., not participating.