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Nelson v. Norris

March 12, 2007

JAMES NELSON ADC # 134962 PETITIONER
v.
LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



ORDER

Petitioner filed a petition and amended petition for writ of habeas corpus (#2, #6) challenging his state court conviction. Petitioner bases his habeas petition on claims of prosecutorial misconduct, ineffective assistance of counsel, and a claim that his crimes should not have been charged as separate offenses. Respondent filed a response (#19) to the amended petition asserting that Petitioner failed to properly raise any of his claims for relief in state court.

After reviewing the response, the Court entered an order (#20) requesting that Petitioner show cause for his alleged failure to properly raise his claims before the state court or show that failure to consider his claims would result in fundamental miscarriage of justice. Petitioner responded with evidence that he is incarcerated in the Arkansas Department of Correction (#26), a motion to appoint counsel (#27), two notices of a change of address (#30, #32), and two motions for copies (#29, #31).

A federal habeas petition must be dismissed if a petitioner tries to raise grounds in federal court which he did not raise properly in state court unless he had a good reason for failing to do so. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has had an opportunity to show "cause" for his failure to raise his claims in state court but has not done so. Respondent admits that Petitioner filed a post-conviction petition claiming ineffective assistance of counsel, but the petition was denied and Petitioner did not appeal the denial. Petitioner has not offered any explanation for why he did not raise his other claims in his post-conviction petition or appeal the denial of claims he did raise in his post-conviction petition. Moreover, Petitioner does not claim he has been prejudiced by the constitutional violations or that failure to consider his claims would result in a fundamental miscarriage of justice. See Murray v. Carrier, 477 U.S. 478, 496 (1986).

IT IS, THEREFORE, ORDERED that Petitioner's petition for writ of habeas corpus (#2) and amended petition for writ of habeas corpus (#6) be DISMISSED WITHOUT PREJUDICE. Petitioner's motion for order (#18), motion to appoint counsel (#27), motion for copies (#29), and motion for copies (#31) are DENIED as moot.

20070312

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