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Stover v. State

Supreme Court of Arkansas

April 14, 2016

CALVIN J. STOVER, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT. NO. 04CR-12-817. HONORABLE ROBIN F. GREEN, JUDGE.

         Calvin J. Stover, Pro se appellant.

         Leslie Rutledge, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.

          OPINION

          PER CURIAM

         Pending 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 affirmed.

         Stover 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 8, 2014.

         Stover filed a timely verified postconviction petition on September 8, 2014,[1] 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.

          This 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 committed. Id.

          When 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.

          Under 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.

          The 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).

         For his 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.

          Stover 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, 528 (2002).

          In the 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 ...


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