Case Information
*1 SUPREME COURT OF ARKANSAS No. CR-12-920
Opinion Delivered Jаnuary 23, 2014 BRIAN N. NELSON PRO SE MOTION FOR EXTENSION
APPELLANT OF TIME TO FILE APPELLANT’S BRIEF [GRANT COUNTY CIRCUIT v. COURT, 27CR-09-6] STATE OF ARKANSAS HONORABLE PHILLIP H. SHIRRON,
APPELLEE JUDGE
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
Appellant Brian N. Nelson was found guilty by a jury of four counts of sexual assault of
a fourteen-year-old boy and sentenced to an aggregate term of 672 months’ imprisonment. We
affirmed.
Nelson v. State
,
Subsequently, appellant timely filed in the trial court a verified pro se petition fоr postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The trial court denied the petition. No appeal was taken, and this court granted leave to proceed with a belated appeal of the order because appellant had not been informed that the petition had been denied as required by Rule 37.3(d).
Now before us is appellant’s pro se motion for extension of time to file the appellant’s
brief-in-chief. Upon review of the record, we find that appellant cоuld not prevail on appeal if
the appeal were permitted to go forward. For that reason, the appeal is dismissed, and the
motion is moot.
Green v. State
,
a petition for postconviction relief will not be permitted to proceed where it is cleаr that the
appellant could not succeed.
Walton v. State
,
The grounds advanced by appellant in the Rule 37.1 petition pertained to appellant’s dissatisfaction with the trial judge, trial error, and claims of ineffective assistance of counsel. An examination of thе Rule 37.1 petition and the order reveals no error in the trial court’s decision to deny the petition.
This court does not reverse a denial of postconviction relief unless the trial court’s
findings are clearly erroneous.
Adams v. State
,
Appellant first alleged in his Rule 37.1 petition that the trial judge was biased and that he was not afforded effective assistance of counsel at trial because counsel did not file a motion asking the trial judge to recuse. Appellant argued that recusal was necessary because the judge lived in the same neighborhood as the victim and the victim’s grandparents and was acquainted with them, lived next door to appellant, and attended the same church as the victim’s family. He asserted further that the trial judge’s bias was revealed when the judge related to the voir dire panel information, allegations, and accusations that were not consistent with the facts of the
case. He further argued that the judge “presented the State’s case” in a light more favorable to the State by stating that appellant had invited the victim to spend the night at appellant’s house; thus, planting the idea in the minds of the potential jurors that appellant had been in the position of “caretaker” to the victim. In his final complaint concerning the judge’s conduct, appellant alleged that the judge inadvertently said that appellant had been chargеd with two counts of rape, and, even though the judge corrected the misstatement, the defense was prejudiced.
The allegations of judicial bias, in themselves, were not cognizable in a proceeding under
Rule 37.1.
Green
,
The issue of whether appellant was denied effective assistance of counsel by counsel’s failure to file а motion asking for the trial judge to recuse was an issue cognizable under the Rule. In an appeal from a trial court’s denial of postconviction relief on a claim of ineffective assistance of counsel, the sole question presented is whether, based on the totality of the
evidence, under the standard set forth by the United States Supreme Court in
Strickland v.
Washington
, 466 U.S. 668 (1984), the trial court clearly erred in holding that counsel’s
performance was not ineffective.
Ewells v. State
,
With respect to the second prong of
Strickland
, the claimant must demonstrate that
counsel’s deficient performance prejudiced his defense to such an extent that the petitioner was
deprived of a fair trial.
Thompson v. State
,
While appellant raisеd a number of examples of what he considered proof of the trial judge’s bias against him, he failed to provide factual support for the claim that any particular behavior on the judge’s part prejudiced the defense. It is well settled that the concept of
cumulative error is not recognized in Rule 37.1 proceedings when assessing whether a petitioner
was afforded effective assistance of counsel.
Bryant v. State
,
Appellant next contended that his attorney was ineffective because counsel failed to
obtain a copy of appеllant’s custodial statement prior to a hearing on the admissibility of the
statement. Counsel for appellant argued at trial and on direct appeal that the trial court erred
in admitting the statement into evidence on the ground that appellant did not make а knowing,
voluntary, and intelligent waiver of his rights against self-incrimination under
Miranda v. Arizona
,
Appellant’s conclusory claims of prejudice did not demonstrate within the scope of an analysis of counsel’s conduct under Strickland that there was any basis for a further objection to the admissibility of the statement or that the defense was рrejudiced by counsel’s conduct. To prevail under Strickland , appellant was required to establish that counsel made some error so
serious with respect to the introduction of the tape into evidence that counsel was not
functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment.
See Abernathy
v. State
,
Appellant’s essentially conclusory allegations concerning the custodial statement also did
not meet his burden under the
Strickland
standard. An entirely conclusory claim is not a ground
for postconviction relief.
Munnerlyn v. State
,
In a related allegation, appellant asserted that counsel was remiss in not procuring the presence of Agent Shepard of the Arkansas State Police at the hearing on the motion to suppress the custodial statement and at trial. According to the trial record, Shepard was present when appellant gave his custodial statement. The hearing record indicates that Shepard was present at the hearing but that he did not offer any testimony. He wаs also not called as a witness at trial. Appellant states that, contrary to the testimony of Robert Byrd, an investigator with the
sheriff’s office, Shepard could have testified that appellant was not advised of his Miranda rights and was under the influence of drugs and alcohol when hе gave the custodial statement.
The objective in reviewing an assertion of ineffective assistance of counsel concerning
the failure to call a certain witness is to determine whether the failure resulted in actual prejudice
that denied the petitioner a fair trial.
Moten v. State Greer v. State
,
Here, the prosecution introduced the recorded custodial statement made by appellant and introduced evidence from Lieutenant Byrd that appellant was advised of his rights and that appellant did not appear impaired. Appellаnt’s bare statements concerning what Shepard would have testified does not constitute a showing that Agent Shepard’s testimony concerning the statement would have been any different from that of Byrd. Appellant did not offer facts from which it could be said that counsel’s decision not to call Shepard was anything more than trial strategy.
Appellant’s final claim of ineffective assistance of counsel was that counsel had a conflict
of interest in that counsel advised appellant and his mother that counsel was herself the mother of a fourteen-year-old son, suggesting that she was seeing her own child as the victim. Appellant asserted that counsel’s being a mother to a child of the victim’s age affected her performance adversely, but he referred to no specific conduct of counsel’s that was affected by the alleged conflict.
Appellant’s conclusion that counsel had a conflict of interest because she had a son the
victim’s age did not, in itself, constitute a showing of prejudice to the defense. Prejudice arising
from a conflict of interest is presumed only when counsel actively represents conflicting
interests, and an actual conflict adversely affects counsel’s performance.
Bond v. State
298, ___ S.W.3d ___ (per curiam);
Norris v. State
,
Appellant ended the Rule 37.1 petition with the argument that the trial court erred in its
instruction to the jury concerning parole eligibility. The argument was not within the purview
of a Rule 37.1 proceeding. Allegations of trial error are properly made in the trial court at trial.
Walton
,
attack on a judgment or permit a petition to function as a substitute for raising an issue at trial
or on appeal.
Hill v. State
,
Appeal dismissed; motion moot.
Brian N. Nelson , pro se appellant.
No response.