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SUPREME COURT OF ARKANSAS

No. CR-16-687

JOSEPH M. BIENEMY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered: December 1, 2016

PRO SE MOTION FOR 

EXTENSION OF TIME TO SUBMIT 

APPEAL BRIEF AND WAIVE 

ADDENDUM REQUIREMENT OR, 

ALTERNATIVELY, ORDER THE 

APPELLEE TO SUBMIT 

SUPPLEMENTAL ADDENDUM

[WHITE COUNTY CIRCUIT 

COURT, NO. 73CR-07-211]

HONORABLE ROBERT EDWARDS, 

JUDGE

APPEAL DISMISSED; MOTION 

MOOT.

PER CURIAM

Appellant Joseph M. Bienemy was convicted of capital murder, as an accomplice, for 

the death of Carlos Deadmon, and this court affirmed the judgment. Bienemy v. State, 374 

Ark. 232, 287 S.W.3d 551 (2008). In 2008, Bienemy filed in the trial court a pro se petition 

for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2015) and, on 

the same day, he filed a petition for scientific testing under Act 1780 of 2001 Acts of 

Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated 

sections 16-112-201 to -208 (Repl. 2006). The trial court denied the Rule 37.1 petition, 

addressing some issues that were related to those raised in the Act 1780 petition, and this 

court affirmed. Bienemy v. State, 2011 Ark. 320 (per curiam). In 2016, Bienemy filed in 
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the trial court a second petition seeking scientific testing under Act 1780, and that petition 

was denied. Bienemy lodged an appeal of the order in this court, and he has filed a motion 

in which he seeks an extension of time to file his brief. Bienemy also seeks either the waiver 

of the requirement that his brief include an addendum or an order from this court directing 

the State to supplement the addendum. We need not consider Bienemy’s requests made in 

the motion because we dismiss the appeal. The motion is therefore moot.

An appeal of the denial of postconviction relief, including an appeal from an order 

denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go 

forward where it is clear that the appellant could not prevail. Hill v. State, 2016 Ark. 258, 

493 S.W.3d 754 (per curiam). Because Bienemy failed to state a basis on which the trial 

court could have ordered scientific testing under the statutes, he cannot prevail on appeal.

Act 1780 provides that a writ of habeas corpus may be issued based on new scientific 

evidence proving a person actually innocent of the offense for which he was convicted. 

Ark. Code Ann. § 16-112-201; Pankau v. State, 2013 Ark. 162. A circuit court can order 

testing under the Act when the proposed testing of the specific evidence may produce new 

material evidence that would support the theory of defense and raise a reasonable probability 

that the petitioner did not commit the offense. Pankau, 2013 Ark. 162. Where the scientific 

evidence was available at trial, the facts underlying the claim, if proven and viewed in light 

of the evidence as a whole, must be sufficient to establish by clear and convincing evidence 

that no reasonable fact-finder would find the petitioner guilty of the underlying offense. 

Ark. Code Ann. § 16-112-201(a).
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Bienemy listed a number of items he wished to have tested. He indicated these items 

had been found at the crime scene, were referenced at trial, and had been tagged as evidence 

by the police. These items included bullet fragments from the crime scene, bullet fragments 

from the victim’s body, and shell casings found at the scene of the murder. Bienemy 

contends that testing these items, specifically DNA testing and fingerprint analysis, would 

produce evidence that would demonstrate that individuals other than Bienemy had been 

present at the crime scene. The trial court found that Bienemy’s petition was not timely; 

that he did not allege any new method of technology that was substantially more probative 

than that which was available at the time of his trial; that, if the testing showed that other 

persons were present, those results would not offer clear and convincing evidence to show 

Bienemy was not guilty of the crime; and that the presence of other individuals at the crime 

scene did not support a finding of innocence. 

Our standard of review for the denial of testing under Act 1780 requires that we will 

not reverse a circuit court’s decision to deny relief unless it is clearly erroneous. Pankau, 

2013 Ark. 162. A finding is clearly erroneous when, although there is evidence to support 

it, the appellate court, after reviewing the entire evidence, is left with the definite and firm 

conviction that a mistake has been committed. Id. 

With the amendments under Act 2250, there are a number of predicate requirements 

that must be met before a court can order testing under the Act. Hill, 2016 Ark. 258, 493 

S.W.3d 754. One of these predicate requirements is that those petitioners who file a motion 

for testing more than thirty-six months after the entry of the judgment of conviction must 

rebut a presumption against timeliness. Ark. Code Ann. § 16-112-202(10)(B). Bienemy 
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attempted to rebut that presumption, and he requested that his later petition be treated as a 

supplement to the earlier petition in order to satisfy this timeliness requirement. Bienemy, 

however, failed to satisfy other requirements under section 16-112-202 in either of his Act 

1780 petitions, regardless of whether he satisfied the requirements under the statute 

concerning timeliness.

Under section 16-112-202, the petition must identify specific evidence for testing 

that was secured as a result of petitioner’s conviction; the evidence must have been 

maintained subject to a chain of custody; and the petitioner must identify a theory of 

defense, not inconsistent with any affirmative defense presented at trial, based on the new 

evidence that the requested testing would provide, and which would establish petitioner’s 

actual innocence. Ark. Code Ann. § 16-112-202(1),(4),(6); Clemons v. State, 2014 Ark. 

454, 446 S.W.3d 619 (per curiam). In addition, the specific evidence to be tested cannot 

have been previously subject to the same testing, and the petitioner who seeks testing must 

not have knowingly waived the right to test the evidence or failed to request testing in a 

prior motion for postconviction testing. Ark. Code Ann. § 16-112-202(2). The proposed 

testing must produce new material evidence that would support the theory of defense 

presented at trial and raise a reasonable probability that the petitioner did not commit the 

offense. Ark. Code Ann. § 16-112-202(8); Davis v. State, 2011 Ark. 191 (per curiam).

Bienemy failed to identify evidence that would satisfy the criteria in the statute because the 

potential results would not support the theory of defense he relies on in a way to establish 

his innocence or raise a reasonable probability that Bienemy did not commit the offense.
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We described the evidence at trial in our opinion on Bienemy’s direct appeal. See 

Bienemy, 374 Ark. 232, 287 S.W.3d 551. A brief summary of the evidence is helpful in 

determining whether the trial court was clearly erroneous in finding that Bienemy failed to 

demonstrate that the testing requested could produce evidence sufficient to raise a reasonable 

probability that Bienemy did not commit the offense. 

As noted, Bienemy was convicted as an accomplice to Deadmon’s murder. 

Deadmon’s girlfriend testified that she saw someone exit a gray Jeep and shoot Deadmon

after Deadmon had gotten into his own car to leave his apartment complex. Other witnesses 

also placed a gray Jeep at the scene. The morning before Deadmon’s murder, Bienemy had 

rented a gray Jeep matching the description of the vehicle that the witnesses had seen. 

Although Bienemy told the police that he had left town the afternoon before the murder

occurred and that he was in New Orleans at the time that Deadmon was shot, Bienemy was 

seen on surveillance footage from a gas station exiting the rented Jeep to pay for gas on the 

morning that Deadmon was shot. Bienemy’s DNA was matched to DNA from the plastic 

tip of a partially smoked cigar found at the scene. There was testimony about a dispute 

between Bienemy and the victim. Darian Williams, who lived at the apartment complex 

where the murder occurred, testified that Bienemy had instructed him to call if he saw 

Deadmon, that Bienemy had called Williams the evening before the murder saying that he 

was in the apartment complex’s parking lot, that Williams had seen a gray Jeep in the 

apartment complex’s parking lot the evening before the murder, that the same gray Jeep 

was in the same spot the next morning, and that Williams had seen Bienemy in another 

apartment on the morning of Deadmon’s murder.
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We have previously discussed whether evidence of another person present at the 

crime scene could constitute material evidence favorable to Bienemy. See Bienemy v. State, 

2016 Ark. 312, ___ S.W.3d ___ (per curiam). In that case, Bienemy alleged a violation of 

Brady v. Maryland, 373 U.S. 83 (1963), as the basis for issuance of a writ of error coram 

nobis, and he alleged that the State had withheld evidence in the form of DNA test reports 

that connected Shedric Williams to DNA recovered from the crime scene. As we 

determined in that case, evidence connecting another person to the crime scene would not 

exonerate Bienemy. Bienemy was charged as an accomplice rather than the shooter. The 

results of additional tests would not change the DNA test results that directly linked 

Bienemy to the crime scene or alter the strong circumstantial evidence that connected 

Bienemy to the Jeep involved in the murder and that established Bienemy’s motive and his 

actions in lying to the police concerning his whereabouts at the time of the murder. It 

therefore follows that the trial court was not clearly erroneous in finding that the proposed 

testing to determine whether there was evidence of other individuals at the crime scene did 

not meet the requirements of the statute, and Bienemy therefore cannot prevail on appeal.

Appeal dismissed; motion moot.