Nathaniel Hughes v. Larry Norris

95-2265
Nathaniel Hughes, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Larry Norris, Director, *
Arkansas Department of * [UNPUBLISHED]
Correction, *
*
Appellee. *
Submitted: December 11, 1995
Filed:
Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.
PER CURIAM.
Nathaniel Hughes appeals the district court's denial of his habeas
corpus petition, brought under 28 U.S.C. § 2254, in which he claims his
counsel was ineffective for failing to appeal his state court convictions.
We affirm.
In September of 1988, Hughes was convicted of first degree murder,
aggravated robbery, and kidnapping in the circuit court of Pulaski County,
Arkansas. He received a life sentence. After his convictions, he
requested that his trial counsel file an appeal. Counsel responded that
he would do so, but that it would take some time. In the following year,
Hughes attempted to contact his counsel regarding the appeal, but he did
not receive any response. In 1990, Hughes discovered that his counsel had
died of cancer.
Three years later, and five years after his convictions, Hughes
obtained a copy of the trial record and learned that his counsel had not
even filed a notice of an appeal. Thereafter, Hughes submitted three
separate motions to the Arkansas Supreme Court, requesting that the court
grant him a belated appeal, pursuant to Rule 36.9 of the Arkansas Rules of
Criminal Procedure, or post-conviction relief under Rule 37. The Arkansas
Supreme Court declined to consider the motions because Hughes had not
complied with either rule's procedural requirements. On October 12, 1994,
Hughes filed this federal petition for writ of habeas corpus, seeking
relief for his counsel's failure to file an appeal on his behalf. The
district court denied his petition. This appeal follows.
Under both Arkansas and federal law, relief must be granted to a
criminal defendant who, through no fault of his own, is denied a direct
appeal. A criminal defendant has a right to a direct appeal and actual or
constructive denial of counsel in a direct appeal is legally presumed to
result in prejudice. Penson v. Ohio, 488 U.S. 75, 88 (1988); Estes v.
U.S., 883 F.2d 645, 649 (8th Cir. 1989). Thus, in a claim of ineffective
assistance of counsel on a direct appeal, where counsel has failed to
appeal or to withdraw, there is no need to prove that petitioner would have
succeeded on the appeal or that the appeal had a certain level of merit to
it.
In Arkansas, a criminal defendant who has been denied a direct appeal
due to an attorney error can seek relief under Rule 36.9(e), which permits
the defendant to apply to the Arkansas Supreme Court for a belated appeal.
See Ark. R. Crim. P. 36.9(e) (Ark. Code Ann. 1987); see also, State v.
Ellis, 637 S.W.2d 588 (Ark. 1982) (per curiam) (such applications routinely
granted when failure to timely appeal results from attorney error).
Although the language of Rule 36.9(e) limits the consideration of belated
appeals to eighteen months post conviction, the Arkansas Supreme Court has
on at least one occasion considered an appeal presented beyond that time
limit.
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Davis v. State, 877 S.W.2d 93, 94 (Ark. 1994). Moreover, in certain
circumstances, the eighteen-month, state-law time bar might be inadequate
to foreclose federal review. See Ellis v. Lockhart, 875 F.2d 200, 201 (8th
Cir. 1989).
In this case, however, the significant delay in a direct appeal
cannot be attributed solely to attorney error. Hughes waited more than
three years after learning about his attorney's death before pursuing an
appeal in the Arkansas system. Given Hughes's substantial contribution to
the delay, we agree that relief should not be granted. In addition, Hughes
has not presented any evidence of innocence such that we should consider
the merits of his federal claim pursuant to Murray v. Carrier, 477 U.S.
478, 496 (1986).
Accordingly, we affirm the decision of the district court and deny
Hughes's petition for writ of habeas corpus.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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