ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 26, 2004

SAMUEL J. WEST, JR.

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-987

PRO SE MOTION FOR ACCESS TO TRIAL TRANSCRIPT AND FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF SALINE COUNTY, CR 99-565-3, HON. GRISHAM PHILLIPS, JUDGE]

MOTION GRANTED IN PART AND DENIED IN PART

Per Curiam

Samuel J. West, Jr. was found guilty by a jury of aggravated robbery and theft of property for which an aggregate term of 600 months' imprisonment was imposed. The court of appeals affirmed. West v. State, CACR 00-987 (Ark. App. May 16, 2001).

West subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37.1 seeking to vacate the judgment. The petition was denied, and the record on appeal from the order has been lodged here.

Appellant West now asks that he be provided with a copy of the transcript lodged with the court of appeals on direct appeal of the judgment. He states that he must have a copy of the trial transcript to abstract that portion of the trial related to the voir dire of the jury so that he can properly raise points for reversal of the order denying postconviction relief, i.e. that his attorney's representation was inadequate because he failed to object to the racial composition of the jury. No other ground for the motion is offered.

The motion is denied because the allegation contained in the Rule 37.1 petition pertaining to the voir dire of the jury was entirely conclusory in nature without factual substantiation of any kind to establish that appellant was prejudiced by the composition of the jury. Petitioner failed to allege even so much as who served on the jury. Thus, appellant could not prevail on appeal on the issue of whether his attorney was ineffective for failing to object to the composition of the jury. The issue as advanced in the Rule 37.1 petition was stated as follows:

Also, counsel failed to object to the State's using its peremptory (sic) challenges,
and jury commissioner's master jury roll composition to eliminate West's
black peers from his jury. This prejudiced West because it denied him a
fair trial by a group of his peers all in violation of his 6^th and 14^th Amendments
Due Process and Equal Protection rights secured him in the U.S. Constitution.

Appellant does not explain the basis that existed for an objection to the master jury roll or to the State's use of its peremptory challenges. There is a strong presumption that counsel is effective, and conclusory allegations without factual substantiation from which a showing of prejudice can be established are not sufficient ground to grant postconviction relief. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001); see also Thomas v. State, 328 Ark. 958, 945 S.W.2d 939 (1997). An appellant is limited on appeal to the allegations raised in the Rule 37.1 petition and cannot bolster the arguments raised below by adding new information obtained from the trial transcript. Wiser v. State, 256 Ark. 921, 511 S.W.2d 178 (1974). As a result, there would be no useful purpose served in providing appellant with a copy of the trial transcript.

The time to file the appellant's brief is extended to thirty days from the date of this opinion.

Motion granted in part and denied in part.