Foley v. Hobbs

Filing 10

ORDER directing the Petitioner to file a Reply, on or before July 11, 2011, advising whether he filed a notice of appeal of the denial of his Rule 37 petition in Pulaski County Circuit Case No. 2008-2880. If he filed a notice of appeal, he should attach a copy to his Reply. Signed by Magistrate Judge J. Thomas Ray on 06/27/2011. (ksm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JAMES LEE FOLEY
ADC #79350
VS.

PETITIONER

5:11CV00065 SWW/JTR

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT

ORDER
Respondent has filed a Response (docket entry #9) asserting, among other
things, that this 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus should be
dismissed without prejudice as a “mixed” petition containing some claims that
Petitioner has not exhausted in state court (his claims of ineffective assistance of
counsel) and some that he has exhausted (his prosecutorial misconduct claims). On
May 24, 2011, the Pulaski County Circuit Court denied Petitioner’s Ark. R. Crim. P.
37 petition for post-conviction relief in Case No. CR 2008-2880 and, when the
Response was filed in this federal habeas action, the time had not expired for
Petitioner to file a notice of appeal of the denial. See Ark. R. App. P.-Crim. 2(a)(4)
(notice of appeal must be filed within thirty days from entry of order denying Rule 37
petition). It appears that the appeal time has now expired, and the website for the
Pulaski County Circuit Court does not indicate that a notice of appeal has been filed.
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Petitioner is directed to file a Reply, on or before July 11, 2011, advising
whether he filed a notice of appeal of the denial of his Rule 37 petition in Pulaski
County Circuit Court Case No. 2008-2880. If he filed a notice of appeal, he should
attach a copy to his Reply.
DATED THIS 27th DAY OF June, 2011.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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