Cite as 2026 Ark. 117
SUPREME COURT OF ARKANSAS
No. CR-25-363
Opinion Delivered: October 1, 2026
JOE BERNARD NOWELL, JR.
APPELLANT PRO SE APPEAL FROM THE
FAULKNER COUNTY CIRCUIT
COURT
V.
[NO. 23CR-18-1172]
STATE OF ARKANSAS HONORABLE CHARLES E.
APPELLEE CLAWSON, JUDGE
AFFIRMED.
COURTNEY RAE HUDSON, Associate Justice
Joe Bernard Nowell, Jr., appeals from the circuit court’s denial of his pro se petition
filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2023). A Faulkner County
jury convicted Nowell of capital murder and sentenced him to life imprisonment. We
affirmed his conviction. Nowell v. State, 2023 Ark. 65, 663 S.W.3d 369.
Although sufficiency of the evidence was not argued on appeal, this court set out the
circumstances surrounding Nowell’s conviction. The victim, William Holt, was discovered
floating in a creek in Faulkner County, eviscerated with his throat cut. The evidence at trial
included the testimony of Nowell’s girlfriend, Jessica Eiss, who stated that Nowell had hit
Holt on the head with a shotgun during an argument. After the argument, the three of them
drove to the creek. Nowell and Holt left Eiss in the car and went for a walk along the creek
where Holt’s body was later discovered. According to Eiss, she stayed in the car on her
phone and did not pay attention to Holt and Nowell after they left. Eiss further testified that Nowell returned to the car alone and covered in blood. Investigators learned that Holt’s
bank account named Nowell as a power of attorney and Eiss as a beneficiary; that Holt had
Social Security disability benefits mailed to an address on Nowell’s property next to Nowell
and Eiss; and that someone had called the Social Security office the day after Holt’s body
was found to report that Holt no longer lived at that address. Id. at 1–3, 663 S.W.3d at 371–
72.
In Nowell’s Rule 37.1 petition,1 he claimed ineffective assistance of counsel and
raised the following allegations: (1) counsel failed to submit a verdict form together with an
“accomplice in dispute” jury instruction with respect to Eiss; (2) counsel failed to move for
a directed verdict; (3) counsel failed to properly cross-examine and impeach Eiss; (4) counsel
failed to properly investigate whether Holt was murdered by another; (5) counsel failed to
argue that Jessica Eiss murdered Holt; and (6) ineffective assistance of appellate counsel.
Nowell has raised the same claims on appeal that he argued in his petitions but has expanded
on certain allegations. Nowell also claims on appeal that the trial court erred by refusing to
provide him with a copy of the trial transcript at public expense and by not conducting an
evidentiary hearing on his petition. The circuit court considered each of Nowell’s claims in
its written order denying the petition, finding that Nowell failed to establish that counsel’s
performance was deficient and prejudicial. We affirm.
1
Nowell filed three petitions for Rule 37.1 relief. He withdrew the second petition, and the first and third petitions raised identical claims. Nowell’s first and third Rule 37.1 petitions were timely filed in June 2023.
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I. Standard of Review
This court reviews a trial court’s decision on a Rule 37.1 petition for clear error.
Woods v. State, 2019 Ark. 62, at 3, 567 S.W.3d 494, 497. 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 made. Id.
II. Ineffective Assistance of Counsel
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.” Pree v. State, 2022 Ark.
187, at 3–4, 653 S.W.3d 347, 352 (quoting Strickland v. Washington, 466 U.S. 668, 686
(1984)). Pursuant to Strickland, 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. Id. A
petitioner making an ineffective-assistance-of-counsel claim bears the heavy burden of
demonstrating that his counsel’s performance fell below an objective standard of
reasonableness. Id. A court must indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Id. Second, the petitioner must
show that counsel’s deficient performance so prejudiced petitioner’s defense that he was
deprived of a fair trial. Id. The petitioner must show that there is a reasonable probability
that the fact-finder’s decision would have been different, absent counsel’s errors. Id. A
reasonable probability is one that is sufficient to undermine confidence in the outcome of
the trial. Id. Unless a petitioner makes both Strickland showings, it cannot be said that the
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conviction resulted from a breakdown in the adversarial process that renders the result
unreliable. Id.
III. Nowell’s Ineffective-Assistance-of-Counsel Claims
A. Failure to Submit a Verdict Form on
Disputed-Accomplice Status
Nowell first alleges that counsel was ineffective for failing to submit a verdict form
on the issue of Eiss’s status as an accomplice. The direct-appeal record2 demonstrates that
the disputed-accomplice jury instruction was introduced to the jury whereby the jury was
given the definition of an accomplice and told that a conviction cannot rest on the testimony
of an accomplice alone. Nowell has not provided sufficient factual allegations that the
absence of a verdict form in addition to the jury instruction would have changed the jury’s
determination that he was guilty of the capital murder. Allegations without factual
substantiation are insufficient to overcome the presumption that counsel’s representation
was effective under the Strickland standard and cannot provide a basis for postconviction
relief. See Price v. State, 2023 Ark. 36, 660 S.W.3d 316. Nowell has not offered factual
substantiation that he was prejudiced by the absence of a verdict form when the jury was
thoroughly instructed on a determination of Eiss’s accomplice status and whether her
testimony required corroboration. In addition, a review of the direct-appeal record shows
that there was sufficient corroborating evidence supporting Eiss’s testimony, including
2
In postconviction proceedings, this court may take judicial notice of the directappeal record without need to supplement the record. Stephenson v. State, 2022 Ark. 51, 639 S.W.3d 858.
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evidence that Nowell’s DNA was identified on a hand-rolled cigarette discovered at the
crime scene.
B. Failure to Move for a Directed Verdict
Nowell argued in the circuit court and on appeal that counsel failed to move for a
directed verdict challenging the lack of evidence corroborating Eiss’s testimony, which
Nowell insists affected the outcome of the trial and the success of his direct appeal. In his
brief on appeal, Nowell expands on his conclusory assertions in his Rule 37.1 petition
regarding the alleged failure of counsel to move for a directed verdict and bolsters his
argument that he was prejudiced by counsel’s failure. In Rule 37.1 proceedings, an appellant
cannot expand on arguments or raise new arguments on appeal, nor can a petitioner rely on
conclusory assertions without substantiation to carry his burden of proof under the Strickland
standard. See Gordon v. State, 2018 Ark. 73, 539 S.W.3d 586.
Nowell’s claim that trial counsel failed to move for a directed verdict is contradicted
by the record, which reveals counsel’s comprehensive directed-verdict motion that
challenged the sufficiency of the circumstantial evidence supporting Nowell’s guilt. After
the presentation of all evidence, the trial court found that there was sufficient circumstantial
evidence to present the case to the jury, which included evidence corroborating Eiss’s
testimony. Nowell’s allegations are not supported by facts that the directed-verdict argument
he puts forth, focusing on Eiss’s accomplice status, would have prevailed on appeal.
C. Failure to Impeach Eiss’s Testimony
In Nowell’s third claim, he alleges that counsel was ineffective because he failed to
adequately cross-examine Eiss by questioning her credibility and memory. On appeal,
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Nowell argues that counsel also failed to point out Eiss’s drug use. However, Nowell did
not raise drug use in his Rule 37.1 petition, and this court will not address new or different
arguments raised for the first time on appeal. Williams v. State, 2019 Ark. 129, 571 S.W.3d
921.
Nowell’s allegation that counsel failed to adequately cross-examine Eiss is not borne
out by the record, which shows that counsel thoroughly cross-examined Eiss with respect
to false statements she had given to investigators and emphasizing that Eiss had lied on
numerous occasions. The inconsistencies between statements Eiss gave investigators
compared to Eiss’s testimony were highlighted during cross-examination. Counsel also
cross-examined Eiss about her interaction with investigators wherein she indicated that she
did not want to be charged with a crime. Counsel’s cross-examination suggested that Eiss
did not implicate Nowell until investigators threatened her with criminal charges.
Furthermore, Eiss’s poor memory was apparent during both direct and cross-examination
as she stated on multiple occasions that she could not remember certain events. In short,
there is nothing in the record to support Nowell’s allegation that counsel was ineffective in
his failure to impeach Eiss’s credibility and memory.
D. Failure to Investigate Whether Holt Was Murdered by Another Person
For his fourth claim, Nowell contends counsel failed to investigate that Holt was
murdered by another person who had previously assaulted Holt. A petitioner who asserts
ineffective assistance for failure to investigate must show that further investigation would
have been fruitful and that the specific materials identified that counsel could have
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uncovered would have been sufficiently significant to raise a reasonable probability of a
different outcome at trial. Watson v. State, 2014 Ark. 203, 444 S.W.3d 835.
Nowell does not identify––in either his petition or his argument on appeal––the
person who previously assaulted Holt; but the name of James Martin as Holt’s assailant was
presented to the jury. Nowell does not present factual support for his allegation that further
investigation would have produced evidence connecting Martin to Holt’s murder or that
Martin had the opportunity to murder Holt. On the other hand, evidence was presented at
trial that Holt was living with Nowell and Eiss when he was murdered; Nowell was with
Holt on the date of Holt’s murder, walking along the creek where Holt’s body was
discovered; and Nowell’s DNA was found at the crime scene.
E. Failure to Raise an Alternative Theory That
Jessica Eiss Murdered Holt
Nowell’s conclusory allegation that counsel was ineffective for failing to present an
alternative theory that Eiss murdered Holt is likewise without merit. Nowell insists that the
suicide note Eiss wrote to her mother supports a claim that she was the perpetrator. The
contents of the suicide note were not introduced into evidence, and Eiss testified that she
and Nowell decided to commit suicide because of what Nowell had done. Evidence
presented at trial further established that she and Nowell attempted to commit suicide shortly
after Nowell’s DNA was obtained by investigators. The direct-appeal record shows that
counsel’s trial strategy included the theory that neither Nowell nor Eiss committed the
murder, that Eiss’s phone records did not place her at the crime scene, and that Eiss was
coerced into implicating Nowell. However, Nowell insists that counsel should have pursued
an alternative strategy.
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This court has explained that matters of trial strategy and tactics fall within the realm
of counsel’s professional judgment and are not grounds for a finding of ineffective assistance
of counsel. Whiteside v. State, 2024 Ark. 30, 684 S.W.3d 588. In fact, it is well settled that
trial counsel’s decisions regarding which theory of the case to pursue represent the epitome
of trial strategy. Van Winkle v. State, 2016 Ark. 98, 486 S.W.3d 778. Nowell’s speculation
that another defense theory should have been presented at trial does not overcome the
presumption that counsel was effective and pursued a reasonable trial strategy.
F. Ineffective Assistance of Appellate Counsel
Finally, Nowell claims that appellate counsel was ineffective for failing to provide an
adequate brief on appeal. This court has consistently held that appellate counsel is not
ineffective for not pursuing a meritless argument on appeal. Sirkaneo v. State, 2022 Ark. 124,
644 S.W.3d 392. Moreover, other than reiterating his ineffective-assistance-of-counsel
claims, Nowell does not set out an appellate argument that would have been meritorious.
Also, because Nowell was sentenced to life imprisonment, the record on appeal was
reviewed in compliance with Arkansas Supreme Court Rule 4-3(a)(2023), and this court
found no prejudicial errors in the record. See Nowell, 2023 Ark. 65, 663 S.W.3d 369. There
is no evidence that appellate counsel overlooked a compelling argument that would have
changed the outcome of the trial or that would have resulted in reversal on appeal.
IV. Motion for a Copy of the Trial Transcript
The record demonstrates that Nowell filed a motion for transcript and leave to amend
his petition. The circuit court, however, did not rule on the request for a trial transcript.
Failure to obtain a ruling addressing a motion on a specific issue waives the issue on appeal.
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Sims v. Payne, 2023 Ark. 187, 678 S.W.3d 766. Arguments must be raised and ruled on to
preserve the issues for appellate review. Id. We therefore decline to address this argument.
V. Evidentiary Hearing
Nowell argues that he was entitled to an evidentiary hearing on his claims for relief.
Here, the circuit court reviewed the record and made specific findings on each of Nowell’s
claims. Rule 37.3 of the Arkansas Rules of Criminal Procedure provides that an evidentiary
hearing should be held in a postconviction proceeding unless the files and record of the case
conclusively show that a petitioner is entitled to no relief. Dennis v. State, 2020 Ark. 28, 592
S.W.3d 646. If the files and record show that the petitioner is not entitled to relief, the
circuit court is required to make written findings to that effect. Ark. R. Crim. P. 37.3(a).
Id. In light of the above, the record demonstrates that Nowell was not entitled to relief, that
the circuit court made the appropriate findings to that effect, and that Nowell was therefore
not entitled to an evidentiary hearing.
Affirmed.
Special Justices CORY COX and MARSHELL NEY join.
WEBB and BRONNI, JJ., not participating.
Joe Bernard Nowell, Jr., pro se appellant.
Tim Griffin, Att’y Gen., by: Jacob Jones, Ass’t Att’y Gen., for appellee.
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