Wright v. Norris

Full title: MARK DUANE WRIGHT PETITIONER v. LARRY NORRIS, Director, Arkansas…

Court: United States District Court, W.D. Arkansas, Fort Smith Division

Date published: Sep 27, 2005

Civil No. 05-2003 (W.D. Ark. Sep. 27, 2005)

Opinion

Civil No. 05-2003.

September 27, 2005

ORDER

JIMM HENDREN, Chief Judge, District

NOW on this 27th day of September 2005, the above referenced matter comes before the Court, and, being well and sufficiently advised, the Court finds as follows:

1. The Magistrate Judge's Report and Recommendation (document #9) was filed by Judge Beverly Stites Jones in the above referenced matter on May 25, 2005. Subsequently, on June 6, 2005, the petitioner filed his Objections to Magistrate's Report and Recommendation (document #10).

2. On September 20, 2005, a hearing was held during which oral arguments were presented by both counsel for the petitioner and counsel for the respondent.

3. Having reviewed the pleadings of the parties, and considered the arguments of counsel and all other matters of relevance before it, the Court finds:

* the petitioner procedurally defaulted his direct appeal to the Arkansas state appellate courts. This Court must therefore refrain from review of petitioner's claims as they were not properly presented at the state level and there has been no: 1) showing of "cause" for the default and resulting "prejudice" or 2) showing of actual innocence. See Fann v. Bowersox, 247 F.3d 841 (8^th Cir. 2001);

* the petitioner admittedly did not file a claim for ineffective assistance of counsel under Rule 37 of the Arkansas Rules of Criminal Procedure. Although the petitioner argues that the Arkansas courts "treated" his appeal as a claim under Rule 37, that argument is not supported by the record; and,

* although the petitioner argues that his writ for habeas corpus should be granted because he has been deprived his constitutional right to appellate review, the cited case law, including Hendricks v. Lock, 238 F.3d 985 (8^th Cir. 2001), and Bell v. Lockhart, 795 F.2d 655 (8^th Cir. 1986), does not support petitioner's argument.

Therefore, the Magistrate Judge's Report and Recommendation should be, and it hereby is, adopted in toto.

IT IS THEREFORE ORDERED that, for the reasons set forth therein, the Magistrate Judge's Report And Recommendation is adopted in toto. Accordingly, the instant petition for writ of habeas corpus is denied and dismissed.

IT IS SO ORDERED.