See Howard, 348 Ark. at 496, 79 S.W.3d at 289. In State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005), this court held as follows: Ark. Sup. Ct. R. 4-3(h) requires an appellant in such a case to abstract all rulings adverse to him on all objections, motions, and requests made by either party.
Rather, under Nixon , the Rule 37 court would not have presumed prejudice; it would have applied the Stickland standard, which would require Thomas to establish both that Trial Counsel, by conceding guilt, fell below the constitutional standard of competence and that prejudice resulted. Nixon , 543 U.S. at 192, 125 S.Ct. 551 (requiring application of Strickland ); see also State v. Fudge , 361 Ark. 412, 206 S.W.3d 850, 858 n.2 (2005) ("There is no presumption of deficiency or prejudice under Strickland even to a concession of guilt on the capital-murder charge itself[.]"). And it is equally unlikely that the Rule 37 court would have found Trial Counsel’s concessions violated Strickland . After all, as the Rule 37 court held in Thomas’s similar (but purportedly distinct) concession-based ineffective-assistance claim, Trial Counsel’s decision to concede guilt was a tactical decision made in the face of overwhelming evidence, and was neither "grounds for finding counsel to be ineffective" nor prejudicial.
Under a well-established Arkansas rule, issues settled on direct appeal are considered the law of the case and cannot be reargued in a Rule 37 petition. State v. Fudge, 206 S.W.3d 850, 863, 361 Ark. 412, 429 (2005) (citing Camargo v. State, 337 Ark. 105, 987 S.W.2d 680 (1999); Johnson v. State, 356 Ark. 534, 157 S.W.3d 151 (2004)).
It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding. State v. Fudge , 361 Ark. 412, 415, 206 S.W.3d 850, 853 (quoting Strickland , 466 U.S. at 693, 104 S.Ct. 2052 ). Indeed, the likelihood of a different outcome must be "substantial, not just conceivable."
In short, a matter of reasonable trial strategy does not constitute deficient performance. See, e.g., State v. Fudge, 361 Ark. 412, 425, 206 S.W.3d 850, 860 (2005) (holding that counsel's decision to not investigate certain mitigating evidence was “within the wide range of reasonable professional assistance” and was not deficient performance). Counsel testified during the postconviction hearing that his decision not to object to the deputy's testimony was based on trial strategy.
This court affirmed the order. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). On resentencing in 2006, Fudge was sentenced to life imprisonment without parole.
Because there is no remedy this court can afford Dowdy, his assertions that the trial court erred in the admission of evidence are moot. Mootness is "a threshold matter" that we address before the merits are reached. Shipp v. Franklin, 370 Ark. 262, 266-67, 258 S.W.3d 744, 748 (2007). As a general rule, the appellate courts of this state will not review issues that are moot. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). A case becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy.
We agree. See State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005) (addressing cross-appeal of appellee without expressly deciding whether a notice of cross-appeal is required in a State's appeal of postconviction proceedings). Accordingly, we do not address those arguments for affirmative relief raised in Harrison's brief on appeal.
This court affirmed the order. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). In 2006, on resentencing, appellant was sentenced to life imprisonment without parole.
In later proceedings under Arkansas Rule of Criminal Procedure 37.5 (2010), the trial court granted petitioner a new sentencing hearing based upon trial counsel's failure to object to evidence presented as an aggravating circumstance and this court affirmed. State v. Fudge, 361 Ark. 412, 206 S.W.3d 850 (2005). On January 24, 2006, a judgment and commitment order reflecting that petitioner received a sentence of life without parole was entered in Pulaski County Circuit Court.