In 1988, this Court affirmed the District Court's denial of Jones's first petition for habeas corpus. Jones v. Lockhart, 851 F.2d 1115 (8th Cir. 1988) (per curiam). The affirmance, however, was without prejudice to Jones's right to file a second petition raising new issues.
He contends, however, that Stakemiller's deposition fails to qualify as an affidavit because it was not signed and notarized. We decline to address this issue because it was raised for the first time on appeal; we generally do not discuss issues that are not raised initially before the district court, Jones v. Lockhart, 851 F.2d 1115, 1116 (8th Cir. 1988) (per curiam), and Holland's argument at this late stage in the proceedings has not been made with the "reasonable promptness" required by the Federal Rules. Fed.R.Civ.Pro. 32(d)(4). B. Sufficiency of the Evidence
We affirm the district court's judgment, but we remand for further proceedings. This opinion assumes knowledge of the facts of this case as set out in Jones v. Lockhart, 851 F.2d 1115 (8th Cir. 1988). In that case, this court affirmed the district court's denial of habeas relief without prejudice to a new petition based upon issues raised for the first time in that appeal.
The only exception to this rule applies "when a denial of review would be fundamentally unfair or result in injustice." Jones v. Lockhart, 851 F.2d 1115, 1116 (8th Cir. 1988) (citing Ryder v. Morris, 752 F.2d 327, 332 (8th Cir.), cert. denied, 471 U.S. 1126, 105 S.Ct. 2660, 86 L.Ed.2d 276 (1985)). In considering the question of whether such an injustice would arise in the present action, we have reviewed the state post-conviction court's published opinion and found that it more than adequately meets the plain statement requirement of Harris v. Reed. Thus, we reject Waterbury's argument.
"that it is a violation of the due process for trial counsel to stipulate to prior convictions under an enhancement statute unless the defendant voluntarily and knowingly agreed to the stipulation." Cox v Hutto, 589 F. 2d 394; Jones v Lockhart, 851 F. 2d 1115, 1116 (1988); See also Lewis v Lane, 832 F. 2d 1446 (1987).The respondent is also correct in his assertion that this argument did not appear in the direct appeal.