# Neal v. Payne

> District Court, E.D. Arkansas · June 18, 2025

URL: https://www.frixlaw.com/law-library/cases/11079997

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** June 18, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11079997

## How later opinions describe it (automated extraction)

- stating that a promise made by law enforcement is only one relevant consideration
- concluding that a but-for type analysis is inadequate because “[u]nder such a test, virtually no statement would be voluntary because very few people give incriminating statements in the absence of official action of some kind”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

DELVIN NEAL PETITIONER
ADC #171726
V. NO. 4:21-cv-01185-JM-JTR

DEXTER PAYNE, Director, RESPONDENT
Arkansas Division of Correction

ORDER

The Court has received a Recommendation for dismissal from United States Magistrate
Judge J. Thomas Ray and the objections filed by Petitioner Delvin Neal. After careful
consideration and a de novo review of the record, the Court concludes that the Recommendation
should be, and hereby is, approved and adopted as this Court’s findings in its entirety.
I. Background
A Drew County, Arkansas, jury convicted Delvin Neal of drug trafficking, possession of
drug paraphernalia, and three counts of endangering the welfare of a minor and Neal was sentenced
to 40 years’ imprisonment. Neal appealed the conviction. On appeal, Neal argued that the trial
court should have suppressed statements Neal made during an interrogation by Officer Ben Michel
and Officer James Slaughter immediately after his arrest on these charges. Neal claimed that the
officers offered to eliminate or reduce charges against him if he would name his drug supplier.
Neal was on probation at the time of the arrest. The Court of Appeals affirmed the conviction.
The Court of Appeals first examined the officers’ statements during the interrogation of
Neal.
In particular, Officer Michel's offer to eliminate a misdemeanor charge on the information
sheet given to the prosecutor was inappropriate, and his statement that the time Neal will
spend in prison depends on what he tells the officers was an egregious mischaracterization
of the judicial process. However, Neal's responses to these attempts by Michel to elicit
information was not a confession but a steadfast denial that the drugs found in the home
were his and a denial that he was “the man” selling drugs in the community. Additionally,
Officer Slaughter tempered Michel's attempts with repeated clarifications that the
prosecutor is the ultimate decision maker when it comes to which charges Neal will face
and that any recommended charges made by the officers can be changed by the prosecutor.
It is also clear that appellant understood that the prosecutor alone would the make the final
decision regarding charges, at one point in the interview asking the officers what kind of
deal could be made with the prosecutor.

Neal v. State, 2020 Ark. App. 417, 5 (2020). The court found that there was enough contradiction
within the officers’ statements to conclude that the statements were ambiguous. The court went on
to consider the vulnerability of Neal. The court noted that Neal did not argue that he was
particularly vulnerable but instead relied on his contention that his statement was involuntary as a
matter of law based upon the officers’ statements. The court noted that Neal was thirty-two years
old at the time of the interrogation, was given his Miranda rights before being questioned, was told
he could stop the interview at any time, and that he declined to cooperate. Id. at 6. In addition, the
court noted that Neal was on probation at the time of the interrogation, so he was familiar with the
legal system, and the interview lasted less than forty minutes. Based upon the totality of the
circumstances, the court concluded that the officers’ statements were ambiguous but Neal “was
not especially vulnerable to the officers’ statements.” Id. at 6.
Neal petitioned the Court of Appeals for rehearing which was denied. He filed a petition
for review to the Arkansas Supreme Court which was also denied. Neal did not file a timely Rule
37 petition for relief, and his motion for extension of time was denied. Neal did not appeal the
denial. He subsequently filed a petition for writ of habeas corpus pursuant to §2254 with this Court.
The Court has reviewed the entire record in this case. In addition to the habeas petition and
briefing, the Court has thoroughly reviewed the transcript of the interrogation, the circuit court
transcript, the record from the direct appeal to the Arkansas Court of Appeals, the opinion of the
Court of Appeals, Neal’s motion for extension of time to file his Rule 37 petition, the State’s
response, and the order denying the extension.
II. Standard of Review
The Antiterrorism and Effective Death Penalty Act constrains the power of a federal habeas
corpus court to grant a state prisoner's application for a writ of habeas corpus on claims adjudicated

on the merits in state court. The writ may issue only if the State court adjudication either resulted
in a decision “contrary to ... clearly established Federal law, as determined by the Supreme Court
of the United States,” or “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1). In addition to these
statutory requirements, a state prisoner must satisfy United States Supreme Court “precedents
governing the appropriate exercise of equitable discretion—including Brecht.” Brown v.
Davenport, 596 U.S. 118, 134 (2022); see Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
A decision is “contrary to” Federal law “if the state court applies a rule that contradicts the
governing law set forth in [Supreme Court] cases” or “if the state court decides a case differently

than [the Supreme] Court has on a set of materially indistinguishable facts.” Carpenter v. Lock,
257 F.3d 775, 778 (8th Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). Under
the “unreasonable application” clause, a federal habeas court may grant the writ “if the state court
identifies the correct governing legal principle from [the Supreme Court's] decisions but
unreasonably applies that principle to the facts of” the case before it. Carpenter, 257 F.3d at 778.
“Therefore, ‘a federal habeas court may not issue the writ simply because that court concludes in
its independent judgment that the relevant state-court decision applied clearly established federal
law erroneously or incorrectly.’ The state court's application must also be unreasonable. Whether
a state court's application was unreasonable is an objective inquiry.” Id. (quoting Simmons v.
Bowersox, 235 F.3d 1124, 1130 (8th Cir. 2001)).
III. Procedural Default
A federal court “will not review a question of federal law decided by a state court if the
decision of that court rests on a state law ground that is independent of the federal question and

adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991) holding
modified by Martinez v. Ryan, 566 U.S. 1 (2012)). “The [independent and adequate state ground]
doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal
claims because the prisoner had failed to meet a state procedural requirement. In these cases, the
state judgment rests on independent and adequate state procedural grounds. Id. at 730. (citing
Wainwright v. Sykes, 433 U.S. 72, 81, 87 (1977)).
In addition, the United States Supreme Court “has long held that a state prisoner's federal
habeas petition should be dismissed if the prisoner has not exhausted available state remedies as
to any of his federal claims.” Coleman, 501 U.S. at 731. “The exhaustion doctrine is principally

designed to protect the state courts' role in the enforcement of federal law and prevent disruption
of state judicial proceedings.” Id. (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
Neal appealed the trial court’s order denying his motion to suppress the statements he made
to Officers Slaughter and Michel. Therefore, this Court applies the general federal habeas standard
of review. It is undisputed, however, that Neal did not raise the ineffective assistance of trial
counsel or appellate counsel claims or the cumulative error claim on appeal. State court remedies
are no longer available. Therefore, Neal has procedurally defaulted those claims.
Due to Neal’s procedural default, the Court can only consider his defaulted claims if he
establishes either: (1) cause for the default and actual prejudice; or (2) that the default will result
in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. Neal counters, claiming the
default should be excused under Martinez.
IV. Analysis
Neal advances two primary arguments. The first argument, that his Fifth, Sixth, and
Fourteenth Amendment rights were violated by the State’s use of his incriminating statements,

which were made during interrogation and subsequently used against him at trial. The second
argument also alleges violations of Neal’s Fifth, Sixth, and Fourteenth Amendment rights, but for
ineffective assistance of counsel at both the trial and appellate levels.
A. Incriminating Statements Made During Interrogation
“A statement is involuntary when it was extracted by threats, violence, or express or
implied promises sufficient to overbear the defendant's will and critically impair his capacity for
self-determination.” United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (quoting
Bowersox, 235 F.3d at 1132). “Whether a confession is involuntary is judged by the totality of the
circumstances. Id. (citing Wilson v. Lawrence County, 260 F.3d 946, 952 (8th Cir. 2001). The court

must look at the “conduct of the officers and the characteristics of the accused.” Id. “The
government bears the burden of persuasion and must prove by a preponderance of the evidence
that the challenged statements were voluntary.” Id. (citing United States v. Astello, 241 F.3d 965,
966 (8th Cir.)).
In his brief, Neal refers to twelve statements made by officers during interrogation which
he claims were “unambiguous false promises of leniency,” and thus make these statements
involuntary as a matter of law. As the “totality of the circumstances” is used to determine whether
a statement was voluntary, the Court does not look at each reference on its own. The statements
made by Neal and the officers in between these twelve statements must be factored in the analysis.
As Judge Ray and the Arkansas Court of Appeals pointed out, certain statements made by
the officers were “an egregious mischaracterization of the judicial process,” and otherwise
blatantly wrong. Neal, 2020 Ark. App. at 5. Petitioners counsel points out that the officers offered
to help the defendant, which can be a violation of Arkansas law. See Pyles v. State, 329 Ark. 73
(1997) (Arkansas Court of Appeals remanding for new trial for officer statements that they would

“help [the defendant] in every way in the world.”); Tatum v. State, 266 Ark. 506 (1979) (Arkansas
Court of Appeals remanding for new trial for the officer’s statement that he would “do all he could
to help [defendant].”) Those statements were wrong indeed, but there were almost a dozen times
the officers clarified that it was up to the prosecutor, though their recommendations would likely
be considered with regards to charges brought. The officers never shouted or physically threatened
Neal and the interview lasted less than forty minutes. The Court of Appeal’s conclusion that the
officers’ statements were ambiguous is not an unreasonable determination of the facts or an
unreasonable application of clearly established Federal law. The court must next consider Neal’s
vulnerability.

Neal claims that Officer Michel’s promises of leniency “prompted” Neal to make
incriminating statements. The Court of Appeals found that Neal was not overborne by the officers’
statements. Neal was a thirty-two-year-old man at the time of the interrogation. He had been
arrested and convicted previously for drug trafficking and was on probation at the time of his arrest
and interrogation. Neal had been read his Miranda rights and was told he could stop the
interrogation at any time. He did not admit that the methamphetamine found in the bathroom
belonged to him or that he sold it. He told the officers that someone from out of town supplied
drugs to everyone in Monticello. His discussion with the officers sounded more like a negotiation
that he was voluntarily engaging in. He gave the officers a few hints about the supplier’s identity
and offered to give names if the officers could get him a deal.
“Even assuming that a reasonable person would view the [officers’] statements as a
promise, a promise made by law enforcement ‘does not render a confession involuntary
per se.’” Simmons v. Bowersox, 235 F.3d 1124, 1133 (8th Cir. 2001); see also Tippitt v.
Lockhart, 859 F.2d 595, 598 (8th Cir.1988) (concluding that defendant's confession was
voluntary despite officers' promise), cert. denied, 490 U.S. 1100, 109 S.Ct. 2452, 104
L.Ed.2d 1007 (1989)). “A promise is merely one factor in the totality of the circumstances.”
Id. See Simmons, 235 F.3d at 1133 (stating that a promise made by law enforcement is only
one relevant consideration). Whatever the facts of an individual case, our polestar always
must be to determine whether or not the authorities overbore the defendant's will and
critically impaired his capacity for self-determination. Thus, it is not enough to show that
the authorities' representations were the but-for cause of a confession. See Schneckloth v.
Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (concluding that a
but-for type analysis is inadequate because “[u]nder such a test, virtually no statement
would be voluntary because very few people give incriminating statements in the absence
of official action of some kind”).

United States v. LeBrun, 363 F.3d 715, 725–26 (8th Cir. 2004). Even assuming the officers’
statements were a promise and that the statements induced Neal to make incriminating statements,
the Court’s analysis remains the same: whether “the overall impact of the interrogation caused the
defendant's will to be overborne.” United States v. Brave Heart, 397 F.3d 1035, 1041 (8th Cir.
2005) (noting “that officers elicit confessions through a variety of tactics, including claiming not
to believe a suspect's explanations, making false promises, playing on a suspect's emotions, using
his respect for his family against him, deceiving the suspect, conveying sympathy, and even using
raised voices. None of these tactics render a confession involuntary.”) “This is a very demanding
standard. …” LeBrun, 363 F.3d at 726. The Court finds that the facts of this case do not rise to that
level.
Furthermore, it appears that the officers did not make a false promise. At the onset of the
interrogation, Neal was looking at seven charges (possession with intent to distribute, possession
of drug paraphernalia- felony, possession of paraphernalia- misdemeanor, maintaining drug
premises, tampering with evidence, terroristic threatening, five counts of endangering welfare of
a child). Of these potential charges, only three went to trial. It is entirely possible that the officers
and prosecutor were true to the officers’ words, and because of Neal’s cooperation, dismissed or
failed to file four charges. If true, the officers’ statements were not “false promises” of leniency at
all. A promise is not illegal, only a false promise. See King v. State, 877 S.W.2d 583, 588 (Ark.

1994) (“We have long held that ‘it is a false promise that renders a confession involuntary.”)
(emphasis in the original) (internal citation omitted)). The Court finds that Neal’s will was not
overborne by false promises during the interrogation.
Even if the Court were to find that Neal had established that the Court of Appeals had
unreasonably and erroneously applied the law, Neal must also pass the Brecht test for assessing
the state court error’s prejudicial effect. Brown, 596 U.S. 118 (2022). Neal has the burden to show
that the error had a “substantial and injurious effect or influence” on the verdict or sentence. Brecht
v. Abrahamson, 507 U.S. at 637.
Neal does little to argue on the injurious effect other than claiming that there was almost

no other evidence pointing to Neal having possession of the drugs or paraphernalia. The State put
on a constructive possession theory, claiming that Neal and his girlfriend, Wigfall, and three
children were the only occupants of the premises where the drugs were found. Wigfall and the
children answered the door when the officer’s knocked. Wigfall told the officers that Neal was not
there. However, moments later the officers heard noise and walked into the house to investigate.
They found Neal on the bed in the bedroom near the bathroom where they soon found
methamphetamine in the toilet and in the bathroom cabinet. The jury could reasonably deduce that
it was Neal who attempted to flush the drugs because he was the only person in the house who was
not visible to the officers when they knocked on the door. Neal argues that it was Wigfall who was
in the vicinity of the bathroom when the drugs were found there. However, according to the
testimony of Probation and Parole Agent Stephanie Harris Austin, Wigfall was never allowed to
go inside the bathroom and close the door. (Tr. Trans., ECF NO. 7-3 at p. 328:1-10, 329:11-25).
She was stopped as she was trying to close the door.
Furthermore, Wigfall testified that the drugs belonged to Neal and that he used her scales

to weigh the drugs before a sale. This is bolstered by one officer’s testimony that Neal told him
the drugs were his (this statement was made outside of interrogation) and he sold
methamphetamine. (Tr. Trans., ECF No. 7-3 at p. 363:13-20, 367:13-15, 368:14-18). Even if the
interview been suppressed, it is likely the State had enough evidence to convict. Neal fails to show
that the courts’ alleged error had a substantial and injurious effect.
B. Ineffective Assistance of Counsel
Neal raises two claims of ineffective assistance of counsel: ineffective assistance of trial
counsel and appellate counsel, both of which relate to the sufficiency of the State’s evidence.
Specifically, Neal argues that his trial lawyers’ directed verdict motion was constitutionally

deficient, and that his appellate lawyer failed to appeal the directed verdict motion.
As stated, Neal procedurally defaulted these claims. Neal argues that the Martinez
exception should apply to an inmate who failed to timely file a Rule 37 motion. In support of his
argument, Neal cites to two cases: Castillo v. Kelley, Case No. 5:14-CV-368 JM/BD and Love v.
Payne, Case No. 5:19-CV-252 DPM. In Castillo, this Court accepted the recommendation of
United States Magistrate Judge Beth Deere to apply Martinez to the ineffective assistance of
counsel claim of Castillo, even though Castillo did not file a Rule 37 petition. In that case, the trial
court judge presiding over Castillo’s case explicitly told Castillo that he could not file a Rule 37
petition because he had pled guilty. For this reason, Judge Deere found that Castillo had established
the cause needed to consider his claim. 1 No such instruction was given to Neal. Neal has failed to
establish cause for his default. As United States District Judge D.P. Marshall Jr. held in Love,
“[t]here is no binding precedent” allowing Martinez to be expanded to include a case where a
prisoner has failed to file a Rule 37 petition. Love v. Payne, 2020 WL 4508239 (E.D. Ark. 2020).
Judge Marshall noted that courts are divided on the issue. He compared Jones v. Pennsylvania

Board of Probation and Parole, 492 F. App’x 242, 246-47 (3d Cir. 2012) (unpublished opinion)
and Castillo v. Kelley, 2015 WL 9595464, at *3 (E.D. Ark. 2015)).
As Judge Ray noted with respect to the ineffectiveness of appellate counsel claim, the
Supreme Court has held that a federal habeus court is not allowed to hear a substantial, but
procedurally defaulted, claim of ineffective assistance of appellate counsel claim based on the fact
that a prisoner’s state postconviction counsel has provided ineffective assistance by failing to raise
the claim. Davila v. Davis, 582 U.S. 521 (2017).
Even if the Court were to consider Neal’s argument for ineffective assistance at both the
trial and appellate level, i.e., that the State failed to prove constructive possession, and that trial

counsel should have moved for a better directed verdict as well as a better appeal, his claims fail.
To support this claim, Neal cites the basic law on constructive possession in Arkansas:
We have established the requisite proof for constructive possession in a long line of cases
concerning joint occupancy. Where contraband is discovered in jointly occupied premises,
and there is no direct evidence that it belongs to a particular occupant, some additional
factor must be present linking the accused to the contraband. The State must prove that the
accused exercised care, control, and management over the contraband.

Hodge v. State, 303 Ark. 375, 377-78 (1990) (emphasis added). Neal asserts that the premises were
jointly occupied, the drugs and paraphernalia were found in an adjoining room, and the premises
was owned by Neal’s girlfriend. He argues that the State lacked “some additional factor linking

1 Judge Deere found that Castillo could not establish prejudice as required to excuse his procedural default.
Neal to the drugs and paraphernalia.” (Objections, ECF No. 15 at p. 11). However, testimonial
evidence is direct evidence, and two witnesses — an officer and Neal’s girlfriend — testified against
Neal. The jury was entitled to find this “additional factor” sufficient to establish the necessary link.
Neal must also show that there would have been a “reasonable probability that, with an improved
argument, there would have been a different verdict.” Strickland, 466 U.S. at 694. As shown above,
based on the testimony of Neal’s girlfriend who claimed he lived there, as well as used the
paraphernalia to weigh up and sell drugs, and the officer’s testimony, a jury could reasonably find

— even without the interrogation statements — that Neal was in fact guilty.
V. Conclusion
The statements made during interrogation were ambiguous based on the totality of the
circumstances and Neal’s will was not overborne by the officers’ statements to him. The Arkansas
Court of Appeals’ decision was not contrary to, or an unreasonable application of, clearly
established federal law; nor was it an unreasonable determination of the facts. 28 U.S.C. § 2254(d).
Moreover, the facts of the case fail to show that had the statements been suppressed there was a
reasonable probability of a different verdict. Neal has failed to establish cause for the procedural
default of his ineffective assistance of counsel claims.
The Court concludes that the Recommendation should be, and hereby is, approved and
adopted as this Court’s findings in its entirety. Neal’s Petition for Writ of Habeas Corpus is
DENIED. This habeas action is DISMISSED with prejudice. Pursuant to Rule 11(a) of the Rules
Governing Section 2254 Cases, no certificate of appealability will be issued.
IT IS SO ORDERED this 18th day of June, 2025.
QU

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11079997. Public record. Not legal advice.