United States District Court, E.D. Arkansas, Pine Bluff Division
Kristine G. Baker, United States District Judge
Court received a Recommended Disposition in this matter from
Magistrate Judge Beth Deere (Dkt. No. 16). The Court also
received timely objections from plaintiff Ike Shawndale Nunn
(Dkt. No. 17). Mr. Nunn also has pending a notice of appeal
(Dkt. No. 19), a motion for certificate of appealability
(Dkt. No. 20), a second motion for certificate appeability
(Dkt. No. 21), a motion for leave to appeal in forma
pauperis (Dkt. No. 22), and a motion for status report
(Dkt. No. 23). After a review of the Recommended Disposition,
Mr. Nunn's objections, and a de novo review of
the record, the Court hereby adopts the Recommended
Disposition and dismisses with prejudice Mr. Nunn's
petition. The Court denies Mr. Nunn's motion for
certificate of appealability (Dkt. No. 20) and second motion
for certificate appeability (Dkt. No. 21). The Court also
denies Mr. Nunn's motion for leave to appeal in forma
pauperis (Dkt. No. 22). The Court grants Mr. Nunn's
motion for status report (Dkt. No. 23).
regard to the merits of Mr. Nunn's petition for writ of
habeas corpus under 28 U.S.C. § 2254, the Court
first reviews the procedural background of this case. A
Jackson County, Arkansas, Circuit Court jury convicted Mr.
Nunn of first-degree murder in connection with the death of
his stepfather, Cecil Phillips (Dkt. No. 16, at 1). The
evidence at trial showed that Mr. Nunn beat Mr. Phillips to
death with a baseball bat. Nunn v. State, 2013
Ark.App. 282. Mr. Nunn's conviction was affirmed on
appeal. Id. On direct appeal, Mr. Nunn did not
challenge the sufficiency of the evidence. See Nunn v.
State, 473 S.W.3d 16, 18 (Ark. 2015). Instead, he argued
that the trial court erroneously denied his motion to exclude
three autopsy photographs. Id.
Mr. Nunn timely filed a verified, pro se petition
for post-conviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 in the circuit court. He argued that
his trial counsel was ineffective for the following reasons:
(1) counsel failed to present evidence that Mr. Nunn did not
kill his stepfather with malice aforethought to support a
finding of guilty for first-degree murder; (2) counsel failed
to investigate an “emotional disturbance
defense[;]” (3) counsel did not have Dr. McConochie, a
psychiatrist, testify about his psychiatric disorder and
physical impairments; (4) counsel caused him to be prejudiced
by counsel's cross-examination of the Toledo
Hospital's witnesses; (5) counsel failed to object to
text messages to Peggy Nunn; (6) counsel did not subpoena
phone records; and (7) counsel failed to object to the
prosecutor's closing argument. The circuit court denied
the petition without a hearing, and Mr. Nunn timely lodged an
appeal of that order with the Arkansas Supreme Court.
the standard for ineffective assistance of counsel claims set
forth in Strickland v. Washington, 466 U.S. 668
(1984), the Arkansas Supreme Court affirmed the circuit
court's denial of Mr. Nunn's Rule 37 petition.
Id. at 19.
Mr. Nunn filed a petition for writ of habeas corpus
with this Court. In his petition, Mr. Nunn presents three
grounds for relief: (1) the circuit court lacked jurisdiction
to try him for first-degree murder because he previously had
a case open with the Social Security Administration; (2) his
trial counsel was ineffective for failing to investigate his
physical and mental impairments, which were documented; and
(3) his Rule 37 counsel was ineffective for failing to attach
supporting documents to his petition (Dkt. No. 2). Respondent
Wendy Kelley denies that Mr. Nunn is entitled to the relief
he seeks and contends that Mr. Nunn procedurally defaulted
all of his claims except for his claim that his counsel was
ineffective for not investigating his alleged mental
impairment. She contends that Mr. Nunn was not entitled to
counsel during his Rule 37 proceedings. Finally, she contends
that the Arkansas Supreme Court's decision affirming the
dismissal of Mr. Nunn's claim that counsel was
ineffective for failing to investigate or present evidence
related to his alleged mental impairment was not contrary to,
or an unreasonable application of, clearly established law.
As a result, Director Kelley requests that the Court dismiss
Mr. Nunn's petition because she contends that his claims
are procedurally defaulted, without merit, or not cognizable.
Magistrate Judge Deere analyzed the merits of Mr. Nunn's
claims and recommends that the Court deny with prejudice Mr.
Nunn's petition for writ of habeas corpus.
Nunn timely filed objections to Magistrate Judge Deere's
Recommended Disposition (Dkt. No. 17). In his first
objection, Mr. Nunn contends that the circuit court lacked
jurisdiction over him because he contends that the Social
Security Administration had primary jurisdiction and
exclusive agency jurisdiction over him and that the agency
determined his mental impairments rendered him disabled (Dkt.
No. 17, at 3). He argues that once this agency determination
was made, the circuit court lacked jurisdiction because it
could not adjudicate his mental state, which he contends is
an element to be proved for a first-degree murder charge. He
contends that the circuit court was estopped from determining
his mental capacity (Dkt. No. 17, at 4). The Court overrules
Mr. Nunn's objection and rejects his argument.
the Social Security Administration may consider as a
disability may or may not be the same as a mental disease or
defect for a jury's purpose in determining criminal
responsibility. This is so because the Social Security
Administration standard for determining disability is
different from the standard applied in criminal proceedings.
First, as a general matter, the circuit court's
jurisdiction over felony criminal matters is established by
Arkansas Code Annotated § 16-88-101(a)(3). The
jurisdiction of an agency is limited to the powers conferred
on it by Congress. Louisiana Pub. Serv. Comm'n v.
F.C.C., 476 U.S. 355, 374 (1986) (“[A]n agency
literally has no power to act, let alone pre-empt the validly
enacted legislation of a sovereign State, unless and until
Congress confers power upon it.”). The best way of
determining whether Congress intended the regulations of an
administrative agency to displace state law is to examine the
nature and scope of the authority granted by Congress to the
agency. Id. The Social Security Administration is an
independent agency in the executive branch of the government
with the duty to administer the old-age, survivors, and
disability insurance programs established under subchapters
II and XVI of Chapter 42 of the United States Code. 42
U.S.C.A. § 901. The agency has been given no authority
over criminal matters, and its regulations do not displace
state law conferring jurisdiction over those matters. In
short, the Social Security Administration does not have
jurisdiction over criminal cases, and its findings of fact
are not binding on state criminal courts in unrelated
matters. Therefore, the Court agrees with the Recommended
Disposition and denies Mr. Nunn's first ground for
habeas corpus relief.
Nunn's second objection is closely related to his first
objection. He contends that the Social Security
Administration determined that he qualified for disability
benefits in part due to his alleged diagnoses of major
depressive disorder, intermittent explosive disorder, alcohol
dependence, cannabis abuse, antisocial personality disorder,
hypertension, and a GAF score of 25 to 30. He contends that
this determination was “federal law” and that it
is a “matter of federal law” that he suffers from
mental disease and defects (Dkt. No. 17, at 10-12). He
further contends that this finding had “legislative
effect” on the Arkansas courts during his prosecution
for first-degree murder (Id.). Essentially, Mr. Nunn
appears to contend that the Administrative Law Judge's
findings during the Social Security Administration proceeding
with regard to his mental impairments are binding regarding
his mental capacity to commit first-degree murder and/or his
mental capacity to stand trial. Again, the standards used to
determine a mental impairment for Social Security disability
cases are different from the standard used to determine
capacity to commit a crime or to stand trial for a crime. An
administrative agency is limited to the scope of its
authority as granted by Congress. The Social Security
Administration has no authority in criminal matters, and its
finding had no preclusive effect in Mr. Nunn's criminal
final objection to the Recommended Disposition, Mr. Nunn
makes a broad assertion that he has been legally incompetent
throughout the course of litigation (Dkt. No. 17, at 12). He
appears to base this contention on the fact that he allegedly
has been receiving mental health care since his commitment to
the Arkansas Department of Correction. To the extent Mr. Nunn
cites this Court to “document 2 page 22, 23 and
24” in support of this contention, the Court finds no
factual support in those documents or in the record before it
for his contention that he has been legally incompetent
throughout the course of litigation (Dkt. No. 17, at 12). For
the reasons explained in the Recommended Disposition and in
this Order, the Court denies with prejudice Mr. Nunn's
petition for habeas corpus relief.
addition, Mr. Nunn has filed a notice of appeal (Dkt. No.
19), motion for certificate of appealability (Dkt. No. 20),
second motion for certificate appeability (Dkt. No. 21), and
motion for leave to appeal in forma pauperis (Dkt.
No. 22). “The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the
district courts of the United States. . . .” 28 U.S.C.
§ 1291. Mr. Nunn filed his notice of appeal with the
Clerk of Court before this Court entered a final order and
judgment. Magistrate Judge Deere's Recommended
Disposition does not operate as a final order (Dkt. No. 16).
If he desires to do so, Mr. Nunn must timely appeal from this
Court's final Order and Judgment, which the Court enters
Court denies Mr. Nunn's motion for certificate of
appealability (Dkt. No. 20) and second motion for certificate
appeability (Dkt. No. 21). The Court determines that Mr. Nunn
has not made a substantial showing that he was denied a
constitutional right, which is required for this Court to
issue a certificate of appealability. See Rule 11 of
the Rules Governing Section 2254 Cases in the United States
District Court; 28 U.S.C. § 2253(c)(1)-(2).
before the Court is Mr. Nunn's motion for leave to
proceed in forma pauperis on appeal (Dkt. No. 22).
The Court previously granted Mr. Nunn leave to proceed in
forma pauperis in this case (Dkt. No. 5). Rule 24(a)(3)
of the Federal Rules of Appellate Procedure provides in part
that a party who was permitted to proceed in forma
pauperis in the district-court action may proceed on
appeal in forma pauperis without further
authorization, unless the district court certifies that the
appeal is not taken in good faith or finds that the party is
not otherwise entitled to proceed in forma pauperis.
However, because the Court has declined to issue a
certificate of appealability, the motion to proceed in
forma pauperis is denied without prejudice. See
28 U.S.C. § 2253. Mr. Nunn may refile the motion with
the United States Court of Appeals for the Eighth Circuit
consistent with Federal Rule of Appellate Procedure 24(a).
Nunn's motion for status report is granted (Dkt. No. 23).
The Clerk of Court is directed to mail a copy of the docket
sheet, along with a copy of this Order ...