United States District Court, E.D. Arkansas, Pine Bluff Division
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to United
States District Court Judge Brian S. Miller. Any party may
serve and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in waiver of the right to
appeal questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
the record made before the Magistrate Judge is inadequate.
the evidence proffered at the hearing before the District
Judge (if such a hearing is granted) was not offered at the
hearing before the Magistrate Judge.
detail of any testimony desired to be introduced at the
hearing before the District Judge in the form of an offer of
proof, and a copy, or the original, of any documentary or
other non-testimonial evidence desired to be introduced at
the hearing before the District Judge.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
your objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
reasons explained below, it is recommended that
Petitioner's Petition for Writ of Habeas Corpus (DE # 2)
be DISMISSED with prejudice.
Michael Rethore, an inmate in the Arkansas Department of
Correction (“ADC”), brings this petition for writ
of habeas corpus under 28 U.S.C. § 2254. In 2018,
Petitioner was convicted of possession of methamphetamine
with intent to deliver, possession of drug paraphernalia, and
simultaneous possession of drugs and firearms; he is
currently serving a sentence of eighty years. (DE # 8-2)
Petitioner's trial counsel filed a Notice of Appeal on
February 20, 2018. (DE # 8-3) On April 25, 2018, an Amended
Sentencing Order was entered. (DE # 8-4) Counsel for
Petitioner filed a Motion to Extend Time for Filing Appeal
Transcript, which was granted by the court on June 18, 2018.
(DE 8-5) The court ordered the appeal transcript was due no
later than June 27, 2018. Id. Petitioner filed a
timely transcript on June 26, 2018. (DE # 8-6) On October 12,
2018, the State filed a Motion to Dismiss the appeal due to
the Defendant's failure to file a timely brief. (DE 8-7)
On November 28, 2018, the appeal was dismissed. (DE # 8-9)
Petitioner filed a Motion Seeking Permission to File a
Belated Appeal of Criminal Conviction and for Appointment of
Appellate Counsel on March 12, 2019. On April 3, 2019, the
Arkansas Court of Appeals denied Petitioner's motion. (DE
29, 2019, Petitioner filed his pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (DE # 2) The
Petitioner makes two claims in his petition: (1) ineffective
assistance of counsel for his appellate counsel's failure
to file a brief on appeal and (2) he was denied his
Fourteenth Amendment rights to appeal when the Arkansas
appellate courts denied his belated appeal motion and his
subsequent petition for review of the belated appeal denial.
Id. Respondent filed his response on September 12,
2019, admitting that Petitioner is in his custody and there
are currently no non-futile state remedies available to him.
Furthermore, Respondent argues that Petitioner is not
entitled to habeas corpus relief because his claims are not