Nunn v. Kelley

Filing 24

ORDER ADOPTING 16 Recommended Disposition. The Court denies with prejudice Mr. Nunn's 2 Petition for habeas corpus relief. In addition, Mr. Nunn has filed a 19 Notice of appeal, with the Clerk of Court before this Court entered a final order and Judgment. If he desires to do so, Mr. Nunn must timely appeal from this Court's final Order and Judgment, which the Court enters today. The Court denies Mr. Nunn's 20 Motion for Certificate of Appealability and 21 Second M otion for Certificate of Appealability. Mr. Nunn's 22 Motion for Leave to Appeal in forma pauperis is denied without prejudice. Mr. Nunn's 23 Motion for status report is granted. The Clerk of Court is directed to mail a copy of the docket sheet, along with a copy of this Order and the Judgment entered in this matter to Mr. Nunn. Signed by Judge Kristine G. Baker on 8/24/2017. (mcz)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
IKE SHAWNDALE NUNN,
ADC # 152571
v.

PLAINTIFF
5:16-cv-00179-KGB-BD

WENDY KELLEY, Director,
Arkansas Department of Correction

DEFENDANT
ORDER

The 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).
In 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.
Subsequently, 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 firstdegree 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.
Applying 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.
Subsequently, 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

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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.
Mr. 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.
What 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

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court’s jurisdiction over felony criminal matters is established by Arkansas Code Annotated § 1688-101(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 oldage, 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.
Mr. 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 firstdegree murder (Id.). Essentially, Mr. Nunn appears to contend that the Administrative Law

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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 case.
For his 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.
In 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

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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 today.
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 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).
Also 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).
Mr. 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 and the Judgment entered in
this matter, to Mr. Nunn.
It is so ordered this the 24th day of August, 2017.
_______________________
Kristine G. Baker
United States District Judge

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