Rethore v. Payne

          PROPOSED FINDINGS AND RECOMMENDATIONS

         INSTRUCTIONS

         The 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.

         If you 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 following:

         1. Why the record made before the Magistrate Judge is inadequate.

         2. Why 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.

         3. The 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.

         From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

         Mail 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 72201-3325

         DISPOSITION

         For the reasons explained below, it is recommended that Petitioner's Petition for Writ of Habeas Corpus (DE # 2) be DISMISSED with prejudice.

         Background

         Petitioner 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 # 8-11)

         On July 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 ...