CALVIN J. STOVER, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE BENTON COUNTY CIRCUIT COURT. NO. 04CR-12-817.
HONORABLE ROBIN F. GREEN, JUDGE.
J. Stover, Pro se appellant.
Rutledge, Att'y Gen., by: Jake H. Jones, Ass't
Att'y Gen., for appellee.
before this court is an appeal from the denial of appellant
Calvin J. Stover's pro se petition for postconviction
relief filed pursuant to Rule 37.1 of the Arkansas Rules of
Criminal Procedure (2015). For the reasons set forth below,
the trial court's order denying postconviction relief is
was convicted by a jury of possession of methamphetamine,
being a felon in possession of a firearm, and simultaneous
possession of drugs and firearms. He was sentenced to an
aggregate term of 480 months' imprisonment. His
convictions and sentences were affirmed on appeal by the
Arkansas Court of Appeals. Stover v. State, 2014
Ark.App. 393, 437 S.W.3d 695. The mandate was issued on July
filed a timely verified postconviction petition on September
8, 2014, which alleged that the trial court was
biased and that his two attorneys, Sarah Ashley and Scott
McElveen, failed to effectively represent him. The trial
court did not conduct a hearing but issued a written order,
cited to the record, applied the standard enunciated in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), and concluded that Stover's
ineffective-assistance-of-counsel claims were not supported
by the trial record and denied relief.
court will not reverse the trial court's decision
granting or denying postconviction relief unless it is
clearly erroneous. Kemp v. State, 347 Ark. 52, 55,
60 S.W.3d 404, 406 (2001). 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
considering an appeal from a trial court's denial of a
Rule 37.1 petition based on 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, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the trial court clearly
erred in holding that counsel's performance was not
ineffective. Taylor v. State, 2013 Ark. 146, at 5,
427 S.W.3d 29, 32.
the two-prong standard outlined in Strickland, to
prevail on a claim of ineffective assistance of counsel, the
petitioner must show that (1) counsel's performance was
deficient and (2) the deficient performance prejudiced his
defense. Adkins v. State, 2015 Ark. 336, at 5-6, 469
S.W.3d 790, 795. The reviewing court must indulge in a strong
presumption that trial counsel's conduct falls within the
wide range of reasonable professional assistance.
Id. The petitioner claiming ineffective assistance
of counsel has the burden of overcoming this presumption by
identifying specific acts or omissions of trial counsel,
which, when viewed from counsel's perspective at the time
of the trial, could not have been the result of reasonable
professional judgment. Id.
second prong requires a petitioner to show that counsel's
deficient performance so prejudiced his defense that he was
deprived of a fair trial. Holloway v. State, 2013
Ark. 140, at 5, 426 S.W.3d 462, 467. Consequently, a
petitioner must show that there is a reasonable probability
that, but for counsel's errors, the fact-finder would
have had a reasonable doubt respecting guilt. Breeden v.
State, 2014 Ark. 159, at 2, 432 S.W.3d 618, 622 (per
curiam). A reasonable probability is a probability sufficient
to undermine confidence in the outcome of the trial.
Id. Unless a petitioner makes both showings, it
cannot be said that the conviction resulted from a breakdown
in the adversarial process that renders the result
unreliable. Airsman v. State, 2015 Ark. 409, at 3,
473 S.W.3d 549, 553-54 (per curiam).
first point on appeal, Stover argues that, because he filed a
grievance against the trial judge with the Judicial
Discipline and Disability Commission, a conflict of interest
arose that caused the trial judge to be biased. Stover argues
that the trial judge should have recused after the grievance
had been filed. Allegations of judicial bias must be raised
at trial and addressed on direct appeal and are not
cognizable in postconviction proceedings. Green v.
State, 2013 Ark. 455, at 8 (per curiam). Further,
Stover's allegations are conclusory in that he fails to
identify particular behavior on the judge's part that
prejudiced the outcome of the trial. Conclusory allegations
of trial error are not sufficient to warrant granting relief
under Rule 37.1. Id.
argues in his second point on appeal that both counsel had a
conflict of interest that allegedly arose when Stover filed
complaints with the Public Defender Commission against one of
his attorneys, Sarah Ashley, which Stover contends created an
irreconcilable conflict that impaired the loyalty and the
effective representation of both attorneys. Stover's bare
contention that counsel were conflicted is insufficient to
establish the existence of an actual conflict of interest,
which generally requires a showing that counsel was actively
representing the conflicting interests of third parties.
Townsend v. State, 350 Ark. 129, 134, 85 S.W.3d 526,
absence of an actual conflict, a petitioner alleging that
counsel's performance was deficient due to another form
of conflict must demonstrate a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different. Townsend,
350 Ark. at 134, 85 S.W.3d at 528 (citing Mickens v.
Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291
(2002)); Winfield v. Roper, 460 F.3d 1026, 1039 (8th
Cir. 2006) (explaining that the rule presuming prejudice has
not been extended beyond cases in which an attorney has
represented more than one defendant). Therefore, as with any
ineffective-assistance-of-counsel claim, Stover had the
burden of ...