FINDINGS AND RECOMMENDATION

H. DAVID YOUNG, Magistrate Judge.

INSTRUCTIONS

The following findings and recommendation have been sent to United States District Judge D. P. Marshall Jr. Any party may serve and file written objections to these findings and recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the Office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendation. The copy will be furnished to the opposing party. Failure to file timely objections may result in a waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:

From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and "Statement of Necessity" to:

RECOMMENDATION

STATE AND FEDERAL PROCEEDINGS. The record reflects that petitioner Glen Eric Nelson, Jr., was convicted in an Arkansas state trial court of murder in the second degree in case number CR-2010-489 and sentenced to the Arkansas Department of Correction. Petitioner appealed his conviction and raised the following three claims: (1) the state trial court judge erred when he "refus[ed] to suppress [Petitioner's] confession and test results obtained from his clothing because probable cause was lacking for his arrest," (2) the state trial court judge erred when he "fail[ed] to find that [Petitioner's] confession was involuntary," and (3) the state trial court judge erred when he "refus[ed] to admit the favorable results of a voice-stress test." See Nelson v. State, 2013 Ark.App. 421, 2013 WL 3282946 at 1 (2013). The Arkansas Court of Appeals found no reversible error and affirmed Petitioner's conviction.

Petitioner then filed a state trial court petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37. In the petition, he challenged his conviction and raised the following six claims: (1) his conviction was obtained by the use of evidence acquired following his unlawful arrest, (2) his confession was coerced, (3) the prosecutor engaged in misconduct, (4) Petitioner was denied a fair and impartial trial, (5) his appellate attorney provided constitutionally inadequate representation, and (6) Petitioner's privilege against self-incrimination was violated. The state trial court judge denied the petition, and Petitioner did not appeal the denial of his petition.

Petitioner then commenced the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. In the petition, he again challenged his conviction and raised the following five claims: (1) his trial attorney was ineffective because counsel represented Petitioner and Petitioner's cousin, an alleged co-defendant who eventually "turned as an informant for the state to get his charges dismissed," see Pleading 2 at 4; (2) counsel was ineffective because he hid a co-defendant's identity, thereby causing the co-defendant's trial to be postponed; (3) counsel was ineffective in defending Petitioner on a charge of being a felon in possession of a firearm, a charge that was later dismissed; (4) police officers lacked probable cause to arrest Petitioner; and (5) the state trial court judge erred when he did not suppress Petitioner's confession.

Respondent Larry Norris ("Norris") filed a response to the petition and asked that it be dismissed. Norris maintained in his response that Petitioner's first three claims are procedurally barred from federal court review, and his fourth and fifth claims are "not cognizable in a federal habeas petition under Stone v. Powell, 428 U.S. 465 (1976)." See Pleading 8 at 3.

Petitioner filed a reply to Norris' submission, but the reply was not particularly responsive to Norris' submission. Petitioner did, however, file a motion for leave to amend his petition. The undersigned conditionally granted the motion, subject to Petitioner's submission of an amended petition setting forth all of his claims. Petitioner eventually filed an amended petition and raised the following four claims: (1) Petitioner's trial attorney labored under a conflict of interest when counsel represented both Petitioner and a co-defendant, a co-defendant who became an informant for the state in CR-2010-489; (2) the state trial court judge erred when he found that there was probable cause to arrest Petitioner, thereby permitting illegally seized evidence to be admitted at trial; (3) the state trial court judge erred when he refused to suppress Petitioner's confession; and (4) Petitioner was denied a fair trial when the state trial court judge refused to admit the results of a voice stress test.

Norris filed a response to Petitioner's amended petition. In the response, Norris maintained that both Petitioner's initial petition and amended petition should be dismissed because the claims contained in the petitions are either procedurally barred from federal court review or are not cognizable.

Petitioner filed a reply to Norris' submission. In the reply, Petitioner noted, inter alia, that he only raised three claims in his amended petition, not four. He identified the three claims as a challenge to counsel's alleged conflict of interest, a challenge to the probable cause to support the arrest, and a challenge to the admission of the confession. Petitioner made no mention of his challenge to the state trial court judge's refusal to admit the results of the voice stress test.

Having thoroughly reviewed the record in this case, and for the reasons that follow, the undersigned finds that Petitioner's claims warrant no relief. The undersigned therefore recommends that his petition be dismissed. All requested relief should be denied, and judgment should be entered for Norris. The undersigned additionally recommends that a certificate of appealability be denied.

COUNSEL'S REPRESENTATION. Petitioner maintains that his trial attorney provided constitutionally inadequate representation and, liberally construing Petitioner's pro se submissions, offers three reasons why. Petitioner first maintains that counsel labored under a conflict of interest because counsel represented both Petitioner and a co-defendant, a co-defendant who became an informant for the state in CR-2010-489.

Petitioner did not raise the claim in the state courts of Arkansas. The appropriate place for him to have done so was in his Rule 37 petition, but the record reflects that he did not raise the claim in that petition. The federal courts will not consider a claim if the petitioner was aware of it but failed to first present it to the state courts in accordance with the state's procedural rules. See Wainwright v. Sykes, 433 U.S. 72 (1977). The exception to this rule permits the claim to be considered if the petitioner can show cause for his default. Because there is nothing to suggest that Petitioner did not know of the claim at the time he filed his Rule 37 petition, the claim is defaulted. It is barred from federal court review unless he can show cause for his default.

Petitioner makes two assertions of cause. He first maintains that his Rule 37 petition was improperly addressed on the merit but should have instead been denied without prejudice as improperly filed. Second, he maintains that he was never notified his Rule 37 petition had been denied. Assuming that Petitioner is correct regarding both matters, they do not provide the cause necessary to excuse his default. His assertions of cause do not satisfactorily explain why he did not raise the claim in his Rule 37 petition. His claim is therefore barred from federal court review.

Notwithstanding the foregoing, the undersigned has considered whether the United States Supreme Court decision in Martinez v. Ryan, 566 U.S. ____, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), has some application in the case at bar.2 For the reasons that follow, the undersigned finds that the decision has no application because Petitioner's claim of a conflict of interest is not a "substantial claim of ineffective assistance at trial."

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part test for reviewing a challenge to an attorney's representation. The petitioner must show that counsel's performance fell below an objective standard of reasonableness, and the petitioner must also show prejudice, that is, "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Cochran v. Dormine, 701 F.3d 865, 869 (8th Cir. 2012).

The United States Supreme Court has, though, recognized an exception to the Strickland v. Washington test. It is when counsel labors under a conflict of interest. The specific parameters of the exception are as follows:

See Williams v. Ludwick, 761 F.3d 841, 845-846 (8th Cir. 2014) [citations omitted].

Petitioner was charged in CR-2010-489 with the murder of April Stephens ("Stephens"). Petitioner alleges that another person was charged as a co-defendant in CR-2010-489, but Petitioner has failed to identify that person. In Petitioner's initial petition, he alleged that the co-defendant was his cousin. See Document 2 at 4. Elana Perkins ("Perkins") testified at trial that Joseph Nelson is Petitioner's cousin and that, shortly after the shooting, Perkins gave Joseph Nelson the firearm the authorities believe to have been used to shoot Stephens. See Document 8, Exhibit A1 (part 1) at ABS 125-127.3 The undersigned assumes that Joseph Nelson was charged with a criminal offense for his involvement in the events surrounding Stephens' murder. There is no evidence, though, that Petitioner's attorney also represented Joseph Nelson. Assuming counsel represented both men, there is no evidence that Petitioner or his attorney objected to the dual representation. For that reason, Petitioner must show that a conflict of interest actually affected the adequacy of counsel's representation.

Petitioner has failed to show that a conflict of interest affected the adequacy of counsel's representation. The undersigned so finds for two reasons. First, Petitioner has alleged virtually no facts to support his claim. Petitioner has failed to explain what information Joseph Nelson may have provided law enforcement authorities, what his defense may have been, or how it conflicted with the defense offered by Petitioner. Petitioner has also failed to explain what strategy or tactic counsel failed to pursue because of his assumed dual representation. See Williams v. Ludwick, supra (petitioner must show counsel's failure to pursue strategy or tactic was linked to actual conflict).

Second, there is no evidence that counsel labored under a conflict of interest. Petitioner was tried alone for Stephens' murder, did not testify at trial, and offered no witnesses in his defense. It appears that his defense was simply that he did not shoot Stephens. See Document 8, Exhibit A1 (part 1) at ABS 70-74, 152-166. Joseph Nelson did not testify at trial so it is impossible to know what information he had relevant to Stephens' murder. The undersigned has examined the abstract of Petitioner's trial and can find nothing to suggest that his defense was impaired in any way by counsel's assumed dual representation.

Liberally construing Petitioner's pro se submissions, it is not impossible that he actually meant to identify Perkins as his co-defendant. She testified at trial that she had been a suspect in Stephen's murder and was arrested for hindering apprehension for her part in the events surrounding Stephens' murder. See Document 8, Exhibit A1 (part 1) at ABS at 126-127, 130-133.

Assuming Perkins was whom Petitioner meant to identify, he has failed to show that a conflict of interest affected the adequacy of counsel's representation. The undersigned so finds because Petitioner has alleged virtually no facts to support his claim. There is no evidence counsel represented both Petitioner and Perkins. Assuming counsel did, Petitioner has failed to explain how his defense conflicted with the defense offered by Perkins or explain what strategy or tactic counsel failed to pursue because of his assumed dual representation. The undersigned has nevertheless examined the abstract of the trial and can find nothing to suggest that Petitioner's defense was impaired in any way by counsel's assumed dual representation.

Liberally construing Petitioner's pro se submissions, he offers a second reason why his trial attorney was ineffective. Petitioner maintains that counsel hid a co-defendant's identity, thereby causing the co-defendant's trial to be postponed.

Setting aside the question of whether the claim is procedurally barred from federal court review, Petitioner's claim warrants no relief because he has alleged virtually no facts to support the claim. He has failed to identify the co-defendant, and there is no evidence counsel hid the co-defendant's identity. Assuming the co-defendant was either Joseph Nelson or Perkins, and counsel obtained a postponement, Petitioner has not shown how his defense was prejudiced by the postponement.

Liberally construing Petitioner's pro se submissions, he offers a third reason why his trial attorney was ineffective. Petitioner maintains that counsel was ineffective in defending Petitioner on a charge of being a felon in possession of a firearm.

Setting aside the question of whether the claim is procedurally barred from federal court review, Petitioner's claim warrants no relief. Petitioner maintains that counsel was ineffective because he demanded a trial for Petitioner on the charge of being a felon in possession of a firearm when there was no evidence to support the charge. Assuming it was error for counsel to have demanded a trial on the charge, Petitioner can show no prejudice as the charge was, by his own admission, dismissed. In addition, he has failed to show that counsel's allegedly inadequate representation on the charge prejudiced the defense Petitioner offered in connection with Stephen's murder.

PROBABLE CAUSE FOR NELSON'S ARREST. Petitioner next maintains that he was arrested without probable cause. Specifically, he maintains in his amended petition that police officers lacked probable cause to arrest him without a warrant, and the officers failed to complete, sign, and file appropriate affidavits.

Petitioner's claim warrants no relief for at least two reasons. First, federal court review of the claim is precluded by Stone v. Powell, 428 U.S. 465 (1976) (Fourth Amendment claim not cognizable if state afforded petitioner full and fair opportunity to litigate claim).4 The State of Arkansas afforded Petitioner a full and fair opportunity to litigate the propriety of his arrest, and he took advantage of that opportunity by raising the claim. His efforts were simply unsuccessful as both the state trial court judge and the state appellate court rejected the claim.

Second, the state Court of Appeals rejected Petitioner's challenge to his arrest, and the adjudication of the claim is entitled to deference and is adopted by the undersigned.5 The adjudication did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. 2254(d).6 The facts as found by the state Court of Appeals establish that there was probable cause for Petitioner's initial arrest.

PETITIONER'S CONFESSION. Petitioner next maintains that although he confessed to shooting Stephens, his confession was coerced. He maintains that he confessed only because the police officers conducting the interrogation made mention of Perkins' children, and the officers knew Petitioner loved children.

Petitioner's claim warrants no relief for at least two reasons. First, the state Court of Appeals rejected Petitioner's challenge to his confession, and the adjudication of the claim is entitled to deference and is adopted by the undersigned.7 The adjudication did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law or result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. 2254(d). The facts as found by the state Court of Appeals do not establish that the police officer conducting the interrogation used inappropriate physical or psychological methods to overbear Petitioner's will.

Second, although the reason offered by Petitioner for challenging the voluntariness of his confession was not presented to the state Court of Appeals and is likely barred from federal court review, the new reason does not justify re-examining the voluntariness of his confession.8 Although it may be possible that incorporating the names of children into a series of questions during an interrogation might cause a confession to be involuntary, it was not so in this instance. As the undersigned has found, the facts as found by the state Court of Appeals do not establish that the police officer conducting the interrogation used inappropriate physical or psychological methods to overbear Petitioner's will.

THE RESULTS OF THE VOICE STRESS TEST. Petitioner last maintains that he was denied a fair trial when the state trial court judge refused to admit the results of a voice stress test. Although the basis of Petitioner's claim is not clear, it appears that he believes a voice stress test would have shown his confession was given under duress.

Petitioner's claim warrants no relief. The state Court of Appeals rejected Petitioner's challenge to the admission of the voice stress test on the basis of state law.9 Assuming that the adjudication of the claim is not entitled to deference because it was made solely on the basis of state law, Petitioner has failed to show that the state trial court judge's ruling was so gross, conspicuously prejudicial, or otherwise of such magnitude that it fatally infected the trial and failed to afford Petitioner the fundamental fairness which is the essence of due process. See Maggitt v. Wyrick, 533 F.2d 383 (8th Cir. 1976).

Given the foregoing, the undersigned finds that Petitioner's claims warrant no relief. It is recommended that his petition be dismissed, all requested relief be denied, and judgment be entered for Norris. In accordance with Rule 11(a) of the Rules Governing Section 2254 Cases In The United States District Courts, a certificate of appealability should also be denied.