Cite as 2022 Ark. 138 

SUPREME COURT OF ARKANSAS 

No. CR-20-642

ROBERT HOLLAND

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered: June 16, 2022

APPEAL FROM THE LINCOLN

COUNTY CIRCUIT COURT 

[NO. 40CR-13-2] 

HONORABLE JODI RAINES 

DENNIS, JUDGE 

AFFIRMED. 

RHONDA K. WOOD, Associate Justice

Robert Holland was sentenced to death for capital murder. He now appeals the 

circuit court’s denial of his Rule 37 petition for ineffective assistance of counsel. We affirm.

I. Background

Holland was convicted of, and sentenced to death for, the capital murder of his 

cellmate at the Cummins Unit of the Division of Correction. While incarcerated for the 

murder of his parents, Holland strangled his cellmate. We affirmed Holland’s conviction and 

death-penalty sentence on direct appeal. Holland v. State, 2015 Ark. 318, 468 S.W.3d 782. 

Holland then filed a petition for postconviction relief with the circuit court under

Arkansas Rule of Criminal Procedure 37.5. He argued that his counsel, John Cone and 

Rebekah Kennedy, were constitutionally ineffective for multiple reasons. The circuit court 

held a Rule 37.5 hearing during which his trial counsel testified. The circuit court denied 

Holland’s Rule 37.5 petition. Holland now appeals that denial. 
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II. Analysis

A. Standard of Review

Our standard for ineffective-assistance-of-counsel claims is a two-prong test from

Strickland v. Washington, 466 U.S. 668 (1984). To prevail under Strickland, the petitioner

must show (1) that counsel’s performance was deficient and (2) that the deficient 

performance prejudiced the defense. Coakley v. State, 2021 Ark. 207, at 2, 633 S.W.3d 328, 

330.

In evaluating the first prong, deficient performance, we presume counsel was

effective, and allegations without factual substantiation cannot overcome that presumption. 

Id. The petitioner has the burden of identifying specific acts and omissions that, when 

viewed from counsel’s perspective at the time of trial, could not have been the result of 

reasonable professional judgment. Id. 

As for the second prong, ineffectiveness claims alleging deficiency in attorney 

performance must affirmatively prove prejudice. Smith v. State, 2016 Ark. 417, at 3, 504 

S.W.3d 595, 597. The petitioner must show that there is a reasonable probability that the 

fact-finder’s decision would have been different absent counsel’s errors. Id. A reasonable 

probability is a probability sufficient to undermine the confidence in the outcome of the 

trial. Id. 

We will not reverse a circuit court’s denial of a Rule 37.5 petition unless the circuit 

court’s findings are clearly erroneous. Coakley, 2021 Ark. 207, at 3, 633 S.W.3d at 330. A 

finding is clearly erroneous when, although there is evidence to support it, the appellate 
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court, after reviewing the entire evidence, has a firm conviction there has been a mistake. 

Id. 

B. Pretrial: Failure to Object to Holland’s Appearing Before Jury in Handcuffs and Failure 

to Appeal Ruling

First, Holland argued his trial counsel failed to object to the use of handcuff restraints 

at the beginning of the first day of his jury trial and that this was ineffective assistance of 

counsel. But this isolates one segment of the case regarding his attorney’s protection of

Holland’s due process interest. 

Holland’s counsel filed a pretrial motion for Holland to appear in civilian clothes and 

without restraints. At the hearing on the motion, Judge Jodi Dennis agreed and ruled

Holland would appear in the courtroom without handcuffs or arm restraints and in civilian 

clothes. But on the first morning of trial an issue arose concerning the availability of

restraints. As Holland’s attorney explained to the new trial court judge, in chambers, before 

voir dire began:

One more thing on the record. [Judge] Jodi Dennis did make a ruling that he was to 

be – appear in the courtroom without handcuffs. The ADC people say that today, 

for reasons – various reasons, they are going to have to have him walk into the 

courtroom with the handcuffs, sit him down, take the handcuffs off once he is sitted 

down – seated. They’re in charge of security. We don’t have a problem with 

that . . . tomorrow and the next day, they have a device that they can put on him 

where he won’t have to go in the courtroom with the handcuffs. All we’re asking 

today is that he, as unobtrusively as possible, go in and the handcuffs be removed, 

taken out of the way. 

The trial court agreed and ruled that the handcuffs be removed unobtrusively on that first 

day once Holland was seated. 
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Due process does not permit the routine use of visible restraints if the circuit court 

has not considered the circumstances of the particular case. Williams v. State, 369 Ark. 104, 

251 S.W.3d 290 (2007) (citing Deck v. Missouri, 544 U.S. 622 (2005)). Holland’s contention 

that any use of handcuffs is prohibited is inaccurate. In Deck, the Supreme Court held “that 

the Constitution forbids the use of visible shackles during the penalty phase, as it forbids 

their use during the guilt phase, unless that use is ‘justified by an essential state interest’—

such as the interest in courtroom security—specific to the defendant on trial.” 544 U.S. at 

624 (quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)). Deck also held that an 

essential state interest may be courtroom decorum, which was the concern Holland’s 

attorney testified to at the Rule 37 hearing. Id. at 628. When determining whether a 

particular physical restraint is justified, a circuit court may take such steps as are reasonably 

necessary to maintain order in the courtroom, though restraints are not per se prejudicial.

Williams v. State, 347 Ark. 728, 747–48, 67 S.W.3d 548, 559–60 (2002). 

We do not agree that Holland’s counsel was deficient in failing to object to the use 

of restraints and preventing Holland from being seated in handcuffs the first day of his jury 

trial. Handcuffs were used only after the circuit court considered the circumstances of this

case, which comports with Deck. Trial counsel properly moved for Holland not to have 

restraints on him at trial and was successful on that motion. Only after discovering that the 

Division of Correction had no other safe means to bring Holland into the courtroom and 

seat him the first day, did Holland’s counsel stipulate to Holland entering in handcuffs and 
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being restrained for that short period of time.1 And counsel knew that in addition to the 

current capital-murder charge, Holland was already serving a sentence for the murder of his 

parents. Holland’s trial counsel stipulating to this was not deficient such that it denied

Holland of his right to counsel. 

Under Deck, a constitutional violation occurs only if the shackles are visible to the 

jury without the court weighing their use and necessity. The record here demonstrates the

court weighed their use on two occasions. This comports with Deck; thus, we cannot say 

counsel was ineffective for failing to object.2

C. Voir Dire: Failure to Life Qualify Jurors, to Test for Mitigation-Impaired Jurors, 

and to Exclude Juror Davis

Holland’s next ineffective-assistance-of-counsel argument arose from conduct during 

jury selection. He asserted that his attorneys failed to life qualify the jurors, failed to test for 

mitigation-impaired jurors, and should have moved to exclude one specific juror, Betty

Davis. 

To prevail on an allegation of ineffective assistance of counsel over jury selection, 

Holland first must overcome the “heavy burden” and presumption that jurors are unbiased. 

1

We also note that the trial record is devoid of any evidence that the jury panel saw 

Holland in handcuffs. As this occurred on the first day of trial, jury selection had not yet 

started, and therefore, no jurors were empaneled. The record does not tell us whether the 

jury pool was in the courtroom or a waiting room when Holland entered. Holland failed 

to prove that any venire members saw him in the restraints.

2

Holland also argues his appellate counsel was ineffective for not appealing the ruling 

that he would enter the courtroom with handcuffs. He claims his conviction and sentence 

would have been reversed had his appellate counsel argued the issue on his direct appeal. 

For the same reasons discussed above, we also reject this argument. 
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Howard v. State, 367 Ark. 18, 36–37, 238 S.W.3d 24, 39–40 (2006). To accomplish this, he 

must show actual bias, and the actual bias must have been sufficient to prejudice him to the 

degree that he was denied a fair trial. Id. Bare allegations of prejudice by counsel’s conduct 

during voir dire that are unsupported by any showing of actual prejudice do not establish 

ineffective assistance of counsel. Id. 

Holland first asserted that his counsel failed to life qualify and explore mitigation 

impairment with several jurors: Danny Chambliss, Lauren Light, Billy Holmes, Betty 

Davis, Jerry Courson, and Jeremy Blevins. We agree with the circuit court that Holland 

has failed to show that his defense was constitutionally ineffective on this point. 

As to Juror Chambliss, Holland asserted he was an “automatic death penalty juror,” 

meaning that Chambliss would automatically sentence Holland to death if he was found 

guilty of capital murder. This record shows otherwise. During voir dire, Holland’s attorney 

asked Chambliss his feeling about the death penalty, and Chambliss responded: “It’s – it’s 

serious. It takes a lot of studying to convince one way or the other to choose for that or not 

for that.” Cone also asked Chambliss if he understood that the default punishment for capital 

murder is life and that “it takes more than just finding someone guilty of capital 

murder . . . to give them the death penalty.” Chambliss replied, “I understand that, yes. 

Because there is a possibility of two options here.” Cone further instructed him that there 

is no automatic death penalty in Arkansas, and Chambliss explained that he understood that. 

The record does not show Chambliss was inclined toward a death sentence.

Similarly, the State instructed Jurors Light and Holmes that if they felt that the death 

penalty was not appropriate, “life without parole would be the only option.” Both agreed. 
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And in response to Holland’s counsel’s questions, Holmes stated that he could consider life 

under the right circumstances. Both also affirmed that they understood that the death penalty 

is not automatic for capital murder and that they could “follow [their] conscience” and vote 

for a life sentence even if they found that the aggravators outweighed the mitigators. 

Betty Davis likewise stated she understood that, as a juror, she could only consider 

death if she concluded that aggravating evidence outweighed mitigating evidence. She also

stated her belief that, even if the aggravators outweighed the mitigators, a juror should be 

able to decide “I do not want to impose the death penalty.” She stated that she could do 

that if chosen. 

Holland’s counsel also explained to Courson and Blevins the sentencing process, 

including the weighing of aggravators and mitigators. Courson agreed he could vote for life 

even if the aggravators outweighed the mitigators. And Blevins stated that even if she were 

the only juror to believe that a death sentence should not be imposed, she could still “stand 

by” her decision. 

Given each of the jurors’ responses, we affirm the circuit court’s finding that his 

counsel’s performance was not deficient because Holland’s counsel was not ineffective. 

During voir dire, counsel tried to discern whether the jurors would automatically sentence 

Holland with the death penalty or if, instead, they would consider mitigating circumstances. 

As outlined above, each of the jurors indicated that they were open to considering life rather 

than death. And the circuit court emphasized that Holland’s counsel testified he did not 

place anyone on the jury that he felt would consider only a sentence of death. We affirm 

the circuit court’s conclusion that counsel’s performance at voir dire was not deficient.
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Holland also specifically challenged his attorneys’ decision to seat juror Betty Davis. 

Davis’s stepfather had been murdered, and the prosecutor in Holland’s case had also 

prosecuted the murderer of Davis’s stepfather. Still, during voir dire, Davis stated that she 

“was not involved in [that] case” and could be an impartial juror and fair to both parties. As 

to the death penalty, she said it “would have to be an extreme case” before she could make 

that decision. 

At the Rule 37 hearing, Cone explained that Davis’s statements about the death 

penalty, as well as her demeanor, were of the type he was looking for in a juror. Thus,

Davis’s answers showed that she was not biased against Holland, and the decision to keep 

Davis was a matter of trial strategy. Because Holland has failed to demonstrate that Davis 

was biased or that he was prejudiced by Davis, we conclude that the circuit court did not 

err in denying relief on this issue. See Howard, 367 Ark. at 37–40, 238 S.W.3d at 39–41.

D. Sentencing Phase: Failure to Prepare and Introduce Witnesses and Exhibits in Support of 

Mitigation

Third, Holland argues that his counsel was deficient because they failed to prepare 

and introduce witnesses or exhibits on mitigation for sentencing. He claims that his counsel 

failed to prepare his cousin, James Pierson, and Tyler Green, a mitigation expert who 

researched his family history and mental-health records, to testify at sentencing. He also

argues that his counsel should have called them to testify and that his counsel failed to 

introduce mitigation exhibits, such as his children’s home records and psychological 

evaluations. The circuit court found that Holland’s counsel prepared the mitigation evidence 

but that, as a matter of trial strategy, they elected not to introduce it. 
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At the Rule 37.5 hearing, Cone disputed that he had failed to prepare mitigation 

evidence. He stated that he and Green had thoroughly discussed all the mitigation evidence 

that Green had uncovered and that he was prepared to call Pierson and Green. Thus,

Holland’s argument that mitigation evidence was not prepared for sentencing is not 

supported by the record. 

Cone also testified that Holland had instructed him not to present mitigation 

evidence. So he cannot now claim that this decision, which he helped make, rendered his 

counsel ineffective. See Schriro v. Landrigan, 550 U.S. 465, 475–77 (2007). At sentencing, 

Holland stated on the record that he did not want to present any evidence. Indeed, Cone 

asked Holland whether he wanted to call Pierson and Green to testify. Holland stated, “I 

would rather not. I don’t want them – I don’t want them to testify as witnesses.” Cone was 

prepared to present Pierson’s and Green’s testimony, but Holland was adamant that he did 

not want to call them as witnesses.

Further, counsel’s decision not to introduce mitigation testimony and evidence was 

a trial strategy, which is not a ground for ineffectiveness. See Howard, 367 Ark. at 36–40, 

238 S.W.3d at 38–41. Cone explained two reasons why he decided not to present mitigation 

evidence. First, Holland had threatened to tell the jury that he would kill again if he did not 

receive the death penalty. Cone thought that allowing Pierson and Green to testify would

trigger Holland into making such an outrageous statement in front of the jury. Thus, he did 

not think the benefit of introducing the evidence outweighed the risk of Holland 

threatening to kill others. Second, Cone did not want evidence that Holland had murdered 

his parents to be admitted. If counsel introduced mitigation witnesses and documents, the 
10

jurors would have known the details of his previous murders. Thus, counsel’s decision to 

not present the testimony of Pierson or Green was a trial tactic, which even if improvident, 

was not a ground for finding ineffective assistance of counsel. Id. We, therefore, find no 

error.3

E. Jury Instructions: Failure to Submit Nonstatutory Mitigators

Holland next argued that his counsel was ineffective for failing to submit six 

nonstatutory mitigators to the jury. The mitigators he proposed should have been offered

are that he was (1) truthful in his admission of the crime; (2) cooperative with law 

enforcement after the murder; (3) willing to accept responsibility for his actions; (4) placed 

in punitive isolation for an extended period of time before committing the murder; (5) a 

model inmate in that he had no law violations in prison for over twenty years; and (6) not 

a threat or problem in a single-man cell. 

On this issue, Cone testified that he considered the potential mitigators but did not 

want to draw attention to the way the murder was committed. Again, he testified his client 

asked him not to present the mitigating evidence. He also testified that he had considered 

submitting mitigators about Holland’s honesty and cooperation following the murder but 

did not want to call attention to the “enormously aggravating manner” in which he had 

committed the murder. Thus, this strategic decision falls within the realm of counsel’s

professional judgment and is not a ground for finding ineffective assistance of counsel. See 

Howard, 367 Ark. at 45–48, 238 S.W.3d at 45–47.

3

Holland also argues that his counsel was deficient for advising him not to put on 

mitigation evidence. For these same reasons, this argument also fails. 
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F. Closing Argument: Failure to Emphasize Mercy

Holland also argues that his counsel was ineffective for failing to emphasize and argue 

mercy to the jury. But during her closing argument for Holland, Kennedy did emphasize 

the concept of mercy, though she did not use that precise word. Kennedy’s closing argument 

told the story of Saint Telemachus, who said, “In God’s name, forbear” to prevent two men 

from killing each other. She also told the jury that the appropriate sentence for Holland was 

life without the possibility of parole. Thus, given these circumstances, like the circuit court, 

we cannot say that failing to say “mercy” to the jury was deficient. 

G. Unredacted Petition

Finally, Holland claimed that the circuit court’s denial of his request to file an 

amended unredacted petition under seal was erroneous. We cannot review this decision 

because Holland failed to proffer an unredacted version of his amended petition. Because 

there is no record of the unredacted petition, we cannot determine whether the circuit 

court’s decision to deny the request was an abuse of discretion. See, e.g., Duque v. Oshman’s 

Sporting Goods Servs., Inc., 327 Ark. 224, 226, 937 S.W.2d 179, 180 (1997) (“Failure to 

proffer evidence so that we can see if prejudice results from its exclusion precludes review 

of the evidence on appeal.”).

Affirmed. 

WEBB, J., dissents.

BARBARA W. WEBB, Justice, dissenting. I dissent. As the majority correctly 

notes, in Deck v. Missouri, 544 U.S. 622 (2005), the Supreme Court held that the 

Constitution forbids the use of visible shackles “unless that use is ‘justified by an essential 
12

state interest’—such as the interest in courtroom security—specific to the defendant on 

trial.” 544 U.S. at 624 (quoting Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986)). Prior to 

Mr. Holland’s trial, the circuit court conducted a hearing and issued an order regarding how 

Mr. Holland was to be restrained. Arguably, this was the proper exercise of the trial court’s 

discretion countenanced by Deck. However, in the case before us, the circuit court’s order 

was simply not followed.

As decided by the circuit court in the pretrial hearing, Mr. Holland was to be free of 

visible handcuffs, and was to be restrained by an “electric belt.” Inexplicably, the electric 

belt was not brought with Mr. Holland when he was transported from the prison. It is not 

disputed that the electric belt was not used at all on the first day of trial. The record reflects 

that prison officials remembered the electric belt on the second and third days of the trial. 

Not only did that subsequent remedial action fail to erase the fact that Mr. Holland was 

handcuffed when he first appeared in court, it is also a tacit acknowledgement of the 

wrongfulness of what occurred on the first day of trial. If prejudice could be erased by 

removing the handcuffs “unobtrusively,” why was it necessary to use the electric belt?

The majority’s assertion that the record was insufficient to support a finding that Mr. 

Holland was prejudiced by his counsel’s failure to oppose his appearing in the courtroom in 

restraints, was precisely the argument made to, and quickly rejected by, the Deck Court. If 

the jury venire was not present, why would Mr. Holland’s trial counsel request that the 

handcuffs be removed “as unobtrusively as possible”? Further, absent from the record is any 

attempt by Mr. Holland’s trial counsel to mitigate the situation by requesting a delay in the 

proceedings until the electric belt could be obtained from the prison. Finally, the failure to 
13

make a more extensive record is itself proof of the ineffectiveness of Mr. Holland’s trial 

counsel. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002). 

Under Deck, prejudice is inherent and presumed. 544 U.S. at 635 (citing Holbrook,

475 U.S. at 568). Accordingly, the State is required to prove beyond a reasonable doubt 

that the visible restraints of any kind did not contribute to the verdict. Deck, 544 U.S. at 

635. The State did not even attempt to meet this burden. 

Mr. Holland’s appellate counsel was also ineffective. While I am mindful of the Deck

Court’s acknowledgement that the trial court had the discretion to order restraints, it could 

only do so if there were “indisputably good reasons for shackling.” Id. This issue was 

completely ignored in Mr. Holland’s direct appeal. While I decline to speculate as to 

whether this case was one in which there are “indisputably good reasons for shackling”––

the standard set forth in Deck––it is certainly not an issue that would be frivolous to appeal.

I respectfully dissent.

Short Law Firm, by: Lee D. Short, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.