Louis Townsell v. Wendy Kelley , 678 F. App'x 458 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2049
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Louis Curtis Townsell
lllllllllllllllllllll Plaintiff - Appellant
v.
Wendy Kelley, Director, Arkansas Department of Corrections, originally
identified as Ray Hobbs
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: February 21, 2017
Filed: March 1, 2017
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Louis Townsell was convicted in Arkansas state court of attempted second-
degree murder, arson, and second-degree domestic battering. He appeals the district
court’s1 denial of his 28 U.S.C. § 2254 petition. The district court issued a certificate
of appealability on Townsell’s claim that his direct appeal counsel was ineffective for
failing to argue that the trial court erred by refusing to instruct the jury on aggravated
assault as a lesser-included offense of attempted capital murder, the crime for which
Townsell was charged. Townsell raised the claim in his state motion for
postconviction relief under Ark. R. Crim. P. 37, and the Rule 37 court dismissed the
motion but issued a letter rather than a formal written order. Townsell did not appeal,
and he argued in his section 2254 petition that the absence of a final order from which
to appeal constituted cause for the procedural default. He also argued that the Rule
37 court made misleading remarks indicating it lacked jurisdiction over the claim,
which discouraged him from appealing.2 We affirm.
We agree with the district court that Townsell did not show cause to excuse the
default. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (where procedural
default has occurred, petitioner must show cause for default and actual prejudice, or
actual innocence). We conclude that comments by the Rule 37 court regarding its
jurisdiction did not constitute cause for Townsell’s failure to appeal, cf. Clemons v.
Delo, 124 F.3d 944, 947 (8th Cir. 1997) (mistakes by postconviction counsel cannot
constitute cause); Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir. 1994) (deficient
performance of counsel in postconviction proceedings cannot constitute cause);
Stanley v. Lockhart, 941 F.2d 707, 709 (8th Cir. 1991) (movant’s pro se status and
limited educational background do not constitute cause); and that Townsell was not
prevented from appealing, as he could have sought a final order from the Rule 37
court if a formal order was needed, or proceeded on a petition for a writ of mandamus
1
The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable Joe
J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas.
2
As it does not fall within the scope of the certificate of appealability, we do
not address Townsell’s double-jeopardy claim.
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to the Arkansas Supreme Court. See Barrow v. State, 2012 Ark. 197, 2012 WL
1631806 (Ark. May 10, 2012) (remanding case with instructions to circuit court to
enter written findings of fact and conclusions of law in accordance with Rule 37.3);
Myers v. McCall, 2012 Ark. App. 669, 2012 WL 5949349 (Ark. Ct. App. Nov. 28,
2012) (noting that remedy is writ of mandamus from Arkansas Supreme Court, if
appellant “for any reason” is unable to obtain final order from circuit court).
The judgment is affirmed.
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