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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-14-687

IKE SHAWNDALE NUNN                                   Opinion Delivered October   29, 2015
                                 APPELLANT
                                                     PRO SE APPEAL FROM THE
V.                                                   JACKSON COUNTY CIRCUIT COURT
                                                     [NO. 34CR-11-124]

STATE OF ARKANSAS                                    HONORABLE HAROLD S. ERWIN,
                                   APPELLEE          JUDGE

                                                     AFFIRMED.


                                          PER CURIAM


       In 2012, appellant Ike Shawndale Nunn was found guilty by a jury of first-degree murder

and was sentenced to 480 months’ imprisonment. At trial, the State introduced into evidence

the blood-stained baseball bat used to kill the victim, photographs depicting a bloody crime

scene, and autopsy photographs of the victim. On appeal, Nunn did not challenge the

sufficiency of the evidence. Instead, he contended that the trial court erroneously denied his

motion to exclude the autopsy photographs. The Arkansas Court of Appeals affirmed. Nunn

v. State, 2013 Ark. App. 282.

       Subsequently, Nunn timely filed a verified, pro se petition for postconviction relief

pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013) in the circuit court. He argued

that his trial counsel was ineffective for the following reasons: counsel failed to present evidence

that Nunn did not kill his stepfather with malice aforethought to support a finding of guilty for

first-degree murder; counsel failed to investigate an “emotional disturbance defense[;]” counsel

did not have Dr. McConochie, a psychiatrist, testify about his psychiatric disorder and physical
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impairments; counsel caused him to be prejudiced by counsel’s cross-examination of the Toledo

Hospital’s witnesses; counsel failed to object to text messages to Peggy Nunn; counsel did not

subpoena phone records; and counsel failed to object to the prosecutor’s closing argument. The

circuit court denied the petition without a hearing,1 and Nunn timely lodged an appeal of that

order in this court.

       When considering an appeal from a circuit court’s denial of a Rule 37.1 petition based

on ineffective assistance of counsel, the sole question presented is whether, based on a totality

of the evidence under the standard set forth by the United States Supreme Court in Strickland

v. Washington, 466 U.S. 668 (1984), the circuit court clearly erred in holding that counsel’s

performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. The benchmark

for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on

as having produced a just result.” Strickland, 466 U.S. at 686.

       Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard.

First, a petitioner raising a claim of ineffective assistance must show that counsel made errors

so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the

Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d


       1
         Arkansas Rule of Criminal Procedure 37.3(c) provides that an evidentiary hearing should
be held in postconviction proceedings unless the files and record of the case conclusively show
that the prisoner is entitled to no relief. Eason v. State, 2011 Ark. 352 (per curiam); Hayes v. State,
2011 Ark. 327, 383 S.W.3d 824 (per curiam). Where the circuit court dismisses a Rule 37.1
petition without an evidentiary hearing, it “shall make written findings to that effect, specifying
any parts of the files, or records that are relied upon to sustain the court’s findings.” Ark. R.
Crim. P. 37.3(a); see Eason, 2011 Ark. 352. In the instant case, the circuit court’s order denying
postconviction relief complies with the requirements of Rule 37.3.
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290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range

of professional assistance, and an appellant 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. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360

S.W.3d 144 (per curiam).

       Second, the petitioner must show that counsel’s deficient performance so prejudiced

petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426

S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his

counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State,

2012 Ark. 59, 386 S.W.3d 477 (per curiam). The 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, i.e., the decision reached would have been different absent the errors. Howard

v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient

to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the

trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in

sentencing. 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. Id.

“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both

components of the inquiry if the defendant makes an insufficient showing on one.” Strickland,

466 U.S. at 697.

       On appeal, Nunn argues that his trial counsel was ineffective for failing to investigate the
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ramifications of his psychiatric impairment, for failing to hire or investigate the need for blood-

spatter and DNA experts, for failing to hire an investigator to identify and interview potential

witnesses, and for failing to investigate “mitigating circumstances at [the] sentencing phase of

trial.”    Contrary to Nunn’s arguments, he failed to establish that he was entitled to

postconviction relief on any of his claims.

          Regarding Nunn’s claim that trial counsel was ineffective for failing to investigate the

ramifications of his psychiatric impairment, Nunn appears to quote extensively a decision from

the Social Security Administration, which referred to an evaluation made by the consultative

examiner, Dr. William McConochie. Although a report by Dr. McConochie was referenced in

Nunn’s petition below—with no report attached below or on appeal—it was a bare allegation

without any substantiation or any specific assertion outside a generalized claim that the

testimony would support a finding that he suffered from mental-health impairments. Allegations

alone do not meet the burden of establishing an ineffective-assistance claim. See Camp v. State,

2015 Ark. 90, 457 S.W.3d 276. Outside of his assertion that Dr. McConochie’s report would

reference his mental and physical impairments for Social Security purposes, Nunn’s assertions

are conclusory, and conclusory allegations unsupported by facts do not provide a basis for

postconviction relief. See Adams v. State, 2013 Ark. 174, 427 S.W.3d 63.

          Moreover, even had Nunn provided some evidence of the existence of an evaluation by

Dr. McConochie, he still bore the burden of proving it would support the affirmative defense

of mental disease or defect below, had his counsel raised it as a defense below and thus he was

prejudiced. See Kaufman v. State, 2013 Ark. 126; see also Williams v. State, 2009 Ark. 433, at 3, 373

S.W.3d 237, 239 (While appellant was granted a mental evaluation, he did not raise the defense
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of mental disease or defect during trial.). Additionally, Nunn makes no argument or assertion

of how an administrative decision by the federal government that he was entitled to assistance

amounted to proof that he had a mental disease or defect. See generally Bowden v. State, 328 Ark.

15, 940 S.W.2d 494 (1997). Bald statements of a history of psychiatric treatment and alcoholism

or other addiction are not sufficient to establish the existence of a mental disease or defect. See

Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). Nunn has failed to establish he was entitled

to postconviction relief based on his claim that counsel was ineffective for failing to investigate

the ramifications of his purported psychiatric impairment.

       Nunn also mentions for the first time on appeal the findings of Dr. Ahmad J. Janjua, who

evaluated him at the Toledo Hospital upon his admission after the murder. This argument was

not presented to the circuit court in Nunn’s original Rule 37 petition. All grounds for relief

pursuant to Rule 37 must be asserted in the original or an amended petition. Ark. R. Crim. P.

37.2. We do not consider issues that are raised for the first time on appeal. Jamett v. State, 2010

Ark. 28, 358 S.W.3d 874 (per curiam).

       Nunn also claims that his counsel was ineffective for failing to investigate the need for

a blood-spatter or DNA expert. Nunn makes a conclusory claim that a blood-spatter expert

“would be able to prove [the] prosecution[’]s theory of death false[,]” and that his counsel failed

to present evidence or cross-examine witnesses regarding his blood as a secondary contributor

on the bat. These are both arguments raised for the first time in this appeal, and we will not

consider issues raised for the first time on appeal. Jamett, 2010 Ark. 28, 358 S.W.3d 874 (per

curiam). Furthermore, Nunn makes no assertion of how a blood-spatter expert’s testimony

would contradict the State’s evidence or inure to his benefit somehow changing the outcome of
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his trial, and his conclusory allegations unsupported by facts do not provide a basis for

postconviction relief. See Adams, 2013 Ark. 174, 427 S.W.3d 63. His claim regarding counsel’s

lack of evidence or cross-examination of witnesses regarding the DNA evidence is also of no

import, as the trial record reflects that counsel did cross-examine the State’s forensic DNA

examiner.2 Notwithstanding his claims to the contrary, such evidence would serve no purpose

in Nunn’s case, as he relied upon justification as the theory for his defense at trial, which

required that he admit the commission of the act itself. See, e.g., Harshaw v. State, 344 Ark. 129,

135, 39 S.W.3d 753, 757 (2001) (Upon charge of second-degree murder, the trial court could not

instruct the jury on manslaughter because appellant’s justification defense meant the appellant

admitted to at least knowingly shooting the victim.).

       Nunn’s last two claims on appeal, trial counsel’s failure to hire an investigator to

interview potential witnesses and counsel’s failure to investigate “mitigating circumstances at

sentencing phase of trial[,]” are also raised for the first time on appeal, and we will not consider

issues raised for the first time on appeal. Jamett, 2010 Ark. 28, 358 S.W.3d 874. Moreover, both

of these claims of trial counsel’s failure to further investigate are vague and conclusory at best,

as he contends additional witnesses and testimony could have evinced his character and mind-set

during the period of time around the murder. However, the witnesses he states should have

been called to testify knew nothing of the crime itself and could only have purportedly offered

some information about his custodial situation with his children—hardly evidence that would

establish a different outcome at his first-degree murder trial. See Wertz v. State, 2014 Ark. 240,

       2
       This court takes judicial notice of the record on direct appeal, and it is not necessary to
supplement the record where the trial record provides an adequate record of what was
considered below. Davis v. State, 2013 Ark. 118 (per curiam).
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434 S.W.3d 895. Accordingly, the court’s denial of postconviction relief was not clearly

erroneous.

       Based on the Strickland standard, we cannot say that counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial cannot be relied on as having

produced a just result. As stated, this court will uphold the judgment of the circuit court denying

postconviction relief unless the appellant demonstrates that the judgment was clearly erroneous.

To establish that the circuit court erred in finding that counsel was not ineffective, the petitioner

has the burden of overcoming the presumption by identifying specific acts and omissions that,

when viewed from counsel’s perspective at the time of trial, could not have been the result of

reasonable professional judgment. Thompson v. State, 2013 Ark. 179 (per curiam); see also Moore

v. State, 2014 Ark. 231 (per curiam). Nunn has not met that burden. Accordingly, the circuit

court’s order is affirmed.

       Affirmed.

       Ike Shawndale Nunn, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




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