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Rhoades v. State

Supreme Court of Arkansas

February 19, 2015

GEORGE L. RHOADES, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

Counsel Amended March 13, 2015.

LITTLE RIVER COUNTY CIRCUIT COURT, NOS. 41CR-92-84, 41CR-92-85.

George L. Rhoades, petitioner, Pro se.

Dustin McDaniel, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for respondent.

Bryant J. Winston, Norwood E. Garnet, Ronald Chaufty.

OPINION

Page 292

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS, OR IN THE ALTERNATIVE FOR LEAVE TO PROCEED IN THE TRIAL COURT PURSUANT TO ARKANSAS CRIMINAL PROCEDURE RULE 37.1, OR TO RECALL MANDATE, OR FOR WRIT OF CERTIORARI, AND MOTION FOR APPOINTMENT OF COUNSEL

PER CURIAM

In 1993, petitioner George L. Rhoades was found guilty by a jury of two counts of capital murder and sentenced to two concurrent terms of life imprisonment without parole. We affirmed. Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994). In 1999, petitioner petitioned this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition was denied. Rhoades v. State, CR-93-1096, (Ark. May 6, 1999) (unpublished per curiam).

Now before us is petitioner's second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. He also asks that the petition be considered in the alternative as a petition to proceed in the trial court under Arkansas Rule of Criminal Procedure 37.1 (1993), or a motion to recall this court's mandate issued on direct appeal, or a petition for writ of certiorari.

First, we note that it is not necessary under Rule 37.1 for petitioner to obtain this court's permission before filing a Rule 37.1 petition in the trial court. The Rule does not require that this court grant leave to proceed. See Hill v. State, 2014 Ark. 57, at 3.

Petitioner invokes Martinez v. Ryan, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012) and related cases, arguing that he should be permitted to proceed under the Rule on the ground that the trial court denied him his right to proceed under the Rule. He has appended to his petition a letter from the trial

Page 293

court to him, dated January 30, 1995, erroneously informing him of the need to obtain this court's permission before filing a Rule 37.1 petition in the trial court. He also appended a letter to him from one of our staff attorneys, dated February 9, 1995, declining to accept for filing a motion for extension of time to file a Rule 37.1 petition. In the letter, petitioner is informed that it is not necessary to seek leave from this court before proceeding in the trial court under the Rule. As the mandate on direct appeal in petitioner's case issued on December 30, 1994, the sixty-day period allowed to file a Rule 37.1 petition in the trial court under Rule 37.2(c) expired February 28, 1995. Petitioner, therefore, could have filed a timely Rule 37.1 petition with the circuit clerk. If relief was denied, an appeal could have been taken to this court. The instant petition is not a substitute for abiding by procedural rules. See ...


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