NOT TO BE PUBLISHED

OPINION

DIXON, JUDGE.

Clyde Litton appeals from the September 14, 2009, order of the Martin Circuit Court. That order denied Litton's motion for relief pursuant to RCr1 11.42, in which he sought to vacate his convictions of murder, first-degree rape, and tampering with physical evidence, and their respective sentences. Because we hold that the trial court did not abuse its discretion by denying Litton's motion, we affirm.

The events which led to Litton's indictment and conviction took place on the evening of August 7, 2002, and the early morning of August 8, 2002.2 During that time, Litton attended a party at the Dempsey Apartments where Litton and the other attendees were consuming large amounts of alcohol. The party ended sometime between 3:00 and 6:00 a.m. on August 8, 2002. Thereafter, Litton and another guest of the party, S.C., were in S.C.'s apartment in the same apartment complex. The evidence indicates that the two had intercourse and a physical altercation followed. S.C. suffered multiple injuries which ultimately resulted in her death. After his altercation with S.C., Litton next visited the apartment where another party guest, V.D., was staying with a friend. V.D. testified that Litton choked her, forced her to perform fellatio on him, punched her, and forced her to have intercourse. Litton also told V.D. that he had killed S.C.

Litton was indicted on charges of murder, first-degree rape, first-degree sodomy, and tampering with physical evidence. A jury trial was held and Litton was convicted of murder, first-degree rape, and tampering with physical evidence. At trial, Litton presented evidence of mental retardation which excluded the death penalty as a possible sentence. He was sentenced to a total of seventy years and final judgment was entered on April 18, 2005. Litton filed an appeal with the Kentucky Supreme Court, which affirmed his conviction and sentence in an unpublished opinion rendered on February 27, 2007.

On March 9, 2009, Litton filed a motion to vacate his conviction and sentence pursuant to RCr 11.42. In addition to several other claims which are not relevant to this appeal, Litton asserted that he had been denied effective assistance of counsel when his trial counsel failed to adequately investigate and present a defense. Specifically, Litton alleged that his trial counsel failed to investigate, prepare, and present an intoxication defense and an extreme emotional disturbance defense. In addition, Litton questioned his trial counsel's failure to investigate the effects of mass alcohol consumption on his existing mental retardation as a possible source of extreme emotional disturbance. Litton's motion was denied in an order entered on September 14, 2009. This appeal followed.

We review a trial court's denial of an RCr 11.42 motion for an abuse of discretion. Bowling v. Commonwealth., 981 S.W.2d 545, 548 (Ky. 1998). A trial court has abused its discretion when its decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)(citation omitted). To succeed on a claim of ineffective assistance of counsel under RCr 11.42, a movant must meet the requirements of the two-prong test as outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984).

Strickland, 466 U.S. at 687. The trial court's relevant inquiry is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

Litton's only argument on appeal is that the trial court erred by denying his RCr 11.42 motion without holding an evidentiary hearing. An evidentiary hearing is only required "if the answer raises a material issue of fact that cannot be determined on the face of the record." RCr 11.42(5). However, a hearing is unnecessary where the allegations, even if true, would not be sufficient to invalidate the conviction. Brewster v. Commonwealth, 723 S.W.2d 863 (Ky.App. 1986).

Of particular concern to Litton is the trial court's failure to hold an evidentiary hearing with regard to the allegations that his trial counsel failed to investigate and present defenses of alcohol intoxication and extreme emotional disturbance. It is important to note that the Kentucky Supreme Court, when resolving Litton's direct appeal, addressed similar arguments from Litton that the trial court erred by not instructing the jury on intoxication and extreme emotional disturbance, and thus establish the law of the case. "The law of the case doctrine is an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been." Brooks v. Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky. App. 2007) (citation omitted).

In Litton's direct appeal, the Supreme Court held that the trial court did not err in its failure to give an intoxication defense, because the evidence did not support the elements required to support an intoxication defense, namely that the defendant was so drunk that he did not know what he was doing. Instead, as the Court indicated, there was actually overwhelming evidence that Litton was aware of his actions. This Court is well aware that "the appellate resolution of an alleged direct error cannot serve as a procedural bar to a related claim of ineffective assistance of counsel." Leonard v. Commonwealth, 279 S.W.3d 151, 158 (Ky. 2009). Indeed, the two claims are separate in their scope. However, the law of the case, in this instance, hinders Litton's ability to prove a necessary element of ineffective assistance of counsel: that the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Litton offers no undiscovered evidence, or other information from outside the record, that could have refuted the evidence that he was aware of his actions. Litton's argument is therefore mere conjecture and the trial court's refusal to hold an evidentiary hearing was appropriate.

The Supreme Court also held, in Litton's direct appeal, that there was insufficient evidence presented to support a defense of extreme emotional disturbance. Again, such a holding in Litton's direct appeal would not bar him from alleging ineffective assistance of counsel. However, Litton's argument in his RCr 11.42 motion for relief was that his trial counsel was ineffective by failing to consult an expert as to the possibility of extreme emotional disturbance being triggered by a mixture of alcohol consumption and existing mental retardation. Again, this argument is purely speculative. Litton offers nothing outside of the record which indicates that an expert would provide information sufficient to alter the outcome of his trial. Instead, he merely guesses that such evidence "may have" existed. Again, such an allegation is insufficient to create a reasonable probability that the outcome of Litton's trial would have been different and an evidentiary hearing was therefore unwarranted.

For the foregoing reasons, the September 14, 2009, order of the Martin Circuit Court is affirmed.

ALL CONCUR.