FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CR-13-3271] HONORABLE WENDELL GRIFFEN, JUDGE
Law Firm, by: Michael Kiel Kaiser and William O.
"Bill" James, Jr., for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
Nelson appeals the Pulaski County Circuit Court order denying
his petition for postconviction relief pursuant to Arkansas
Rule of Criminal Procedure 37.5 (2017). We affirm the circuit
court's decision denying postconviction relief.
October 7, 2013, the State charged Nelson with first-degree
murder of Latravis Morant and first-degree battery of Sedrick
Green, along with a firearm enhancement and an
in-the-presence-of-children enhancement. The court held a
jury trial from October 21 through 24, 2014.
testimony at trial showed that on August 14, 2013, Nelson,
Green, and Morant were drinking alcohol and playing a dice
game with Nelson's cousin, Courtney Marshall, when a
physical altercation developed between Green and Marshall.
Nelson grabbed a gun from Marshall's waistband and began
shooting. Morant was shot in the abdomen while trying to
interfere with the fight. He later died at the hospital.
Green was shot in the arm and thigh while he was on the
ground fighting Marshall. He survived his injuries. At trial,
the jury was instructed on the justification defense as to
both the murder and the battery charges. The jury convicted
Nelson of second-degree murder and first-degree battery. He
was sentenced to thirty-five years' imprisonment for
second-degree murder and eleven years' imprisonment for
November 11, 2014, Nelson filed a motion for a new trial and
asserted a claim of ineffective assistance of counsel.
Specifically, he asserted that his counsel was ineffective
for submitting a flawed jury instruction on the justification
defense for the battery charge. The court denied Nelson's
appeal, this court affirmed Nelson's convictions. See
Nelson v. State, 2015 Ark.App. 697, 477 S.W.3d 569. The
mandate was issued on January 29, 2016.
April 21, 2017, Nelson filed a third amended Rule 37
petition. In the petition, he alleged that his trial
counsel was ineffective for (1) submitting a flawed jury
instruction on his justification defense to the battery
charge; (2) advising him not to testify; (3) not introducing
medical evidence of Marshall's injuries; (4) failing to
elicit testimony about Green's prior acts of domestic
violence; (5) failing to call witnesses for sentencing; and
(6) failing to request a nonmodel jury instruction on
circuit court held an evidentiary hearing on September 28 and
October 5, 2017. On the first day of the hearing, the court
found that it was precluded from considering Nelson's
claim concerning the flawed jury instruction because this
court had rejected the argument on direct appeal.
October 3, 2017, Nelson filed a motion to amend his Rule 37
petition, requesting leave to modify his argument concerning
the flawed jury instruction. Specifically, he sought to claim
that his counsel was ineffective in asserting his original
ineffective-assistance-of-counsel claim for failing to argue
that he had suffered prejudice due to the flawed jury
instruction. On the second day of the hearing, the court
orally granted Nelson's motion to amend.
November 9, 2017, the circuit court entered a written order
denying Nelson's Rule 37 petition. In the order, the
court denied Nelson's claims alleged in his April 21,
2017 petition. The court did not consider Nelson's
amended claim concerning counsel's failure to allege
prejudice as a result of the flawed jury instruction.
Therefore, on November 13, Nelson filed a motion to
reconsider the denial of his Rule 37 petition. In the motion,
he requested the court to rule on his amended claim. The
court never issued an order on the motion.
December 6, Nelson timely appealed the court's November 9
order to this court, and on December 14, Nelson filed a
second notice of appeal to include the court's