ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 31, 2002

SCOTTY RAY PAYTON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 01-370

AN APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY,

NO. CR 96-298

HONORABLE CHARLES H. EDDY,

CIRCUIT JUDGE

AFFIRMED

Appellant, Scotty Ray Payton, was convicted at a jury trial of first-degree murder. He was sentenced to forty years in the Arkansas Department of Correction. The court of appeals affirmed his conviction and sentence in Payton v. State, CACR 99-412 (Ark. App. December 22, 1999). Subsequently, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. The circuit court denied appellant's petition after a hearing. This appeal followed.

Under appellant's first point on appeal, he argues that counsel was ineffective for failing to preserve for appellate review four out of five issues presented. However, appellant does not set forth those issues. Appellant only argues the sufficiency of the evidence. We do not reach appellant's challenge to the sufficiency of the evidence because he does not argue that counsel was ineffective for failing to preserve this issue for appeal. Sufficiency challenges cannot be raised in Rule 37 proceedings. Sanford v. State, 342 Ark. 22, 25 S.W.3d 414 (2000).

For his second point on appeal, appellant argues that counsel was ineffective for failing toprepare for the sentencing phase of appellant's trial. Appellant contends that counsel failed to call expert witnesses from the guilt phase of the trial and failed to investigate other evidence to submit as mitigation. Appellant's argument fails because he neglected to show how he was prejudiced.

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 argued in his petition that counsel's lack of trial preparation offered little adversarial protection during the sentencing phase of appellant's trial. 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).

Appellant failed to provide any evidence of mitigation that he contends counsel failed to investigate. In fact, appellant's abstract of the Rule 37 hearing indicates that appellant failed to offer any evidence to support his conclusory allegation as set forth in his petition. 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). Because appellant has failed to demonstrate prejudice, we affirm the trial court's finding that trial counsel had presented credible evidence during the sentencing phase of appellant's trial. The circuit court specifically relied on testimony given by Betty Hendricks, appellant's mother, and trial counsel's closing argument during the sentencing phase. 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 and allegations withoutsubstantiation are insufficient to overcome the presumption. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1993). Affirmed.