Daniel Lon Graham v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction

Eighth Circuit

Daniel Lon Graham v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction

557 F.2d 164, 1977 U.S. App. LEXIS 12767

CourtCourt of Appeals for the Eighth Circuit

DecidedJune 23, 1977

Docket77-1139

StatusPublished

Cited by1 cases

This text of 557 F.2d 164 (Daniel Lon Graham v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Daniel Lon Graham v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction, 557 F.2d 164, 1977 U.S. App. LEXIS 12767 (8th Cir. 1977).

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Opinion

PER CURIAM.

Petitioner was tried and convicted of kidnapping and sentenced to life imprisonment by an Arkansas state court. He sought a writ of habeas corpus in federal district court alleging, inter alia, that he was denied due process because his court appointed attorney failed to file a notice of appeal with the Arkansas Supreme Court. It appears from the record that the transcript of petitioner’s trial has now been lost. After a plenary evidentiary hearing, the federal district court ruled that the petitioner had failed to exhaust his state court remedy on .the due process claim. The only issue on appeal is whether this ruling is correct. We reverse and remand to the district court for further consideration.

Rule 36.9 of the Arkansas Rules of Criminal Procedure allows the state supreme court to exercise discretionary jurisdiction to decide an untimely appeal if “good reason” for the omission is shown. However, the Arkansas Supreme Court has recently held that to raise this'issue the defendant should file a state post-conviction petition. Allen v. State, No. CR 77-57 (Ark., filed Apr. 11, 1977). The record is clear that petitioner has done this and has been denied relief by the state court.

We are satisfied that the petitioner has sufficiently exhausted his state remedies. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). On remand the district court should consider the merits of the issue on the now completed record.

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PER CURIAM.

Petitioner was tried and convicted of kidnapping and sentenced to life imprisonment by an Arkansas state court. He sought a writ of habeas corpus in federal district court alleging, inter alia, that he was denied due process because his court appointed attorney failed to file a notice of appeal with the Arkansas Supreme Court. It appears from the record that the transcript of petitioner’s trial has now been lost. After a plenary evidentiary hearing, the federal district court ruled that the petitioner had failed to exhaust his state court remedy on .the due process claim. The only issue on appeal is whether this ruling is correct. We reverse and remand to the district court for further consideration.

Rule 36.9 of the Arkansas Rules of Criminal Procedure allows the state supreme court to exercise discretionary jurisdiction to decide an untimely appeal if “good reason” for the omission is shown. However, the Arkansas Supreme Court has recently held that to raise this'issue the defendant should file a state post-conviction petition. Allen v. State, No. CR 77-57 (Ark., filed Apr. 11, 1977). The record is clear that petitioner has done this and has been denied relief by the state court.

We are satisfied that the petitioner has sufficiently exhausted his state remedies. See Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). On remand the district court should consider the merits of the issue on the now completed record.

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557 F.2d 164, 1977 U.S. App. LEXIS 12767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daniel-lon-graham-v-terrell-don-hutto-commissioner-arkansas-department-ca8-1977.

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