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Nelson v. Norris

United States District Court, E.D. Arkansas, Pine Bluff Division

December 10, 2014

GLEN ERIC NELSON, JR., Petitioner,
v.
LARRY NORRIS, Interim Director of the Arkansas Department of Correction[1], Respondent.

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:

1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The details of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.

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 ...


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