1The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-1127

___________

Marion Alfred Lovell, II, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Eastern

Larry Norris, Director, Arkansas * District of Arkansas.

Department of Correction, *

*

Appellee. *

___________

Submitted: September 14, 1999

Filed: December 10, 1999

___________

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and

BOGUE,1 District Judge.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Marion Lovell was convicted in state court of possessing a controlled substance,

and his conviction and sentence were affirmed on appeal. When the trial court denied

his petition for post-conviction relief, Mr. Lovell filed a timely notice of appeal and

requested a transcript of the relevant proceedings. Under the applicable Arkansas law,
2The Honorable Jerry W. Caveneau, United States Magistrate Judge for the

Eastern District of Arkansas, sitting by consent of the parties. See 28 U.S.C.

§ 636(c)(1), Fed. R. Civ. P. 73(a).

-2-

Mr. Lovell then had the duty to forward the relevant record to the Arkansas Supreme

Court within 90 days. See Ark. R. Crim. App. P. 4(a), Ark. R. Civ. App. P. 5(a).

About two months after he filed his notice of appeal, Mr. Lovell moved in the trial

court for an extension of time to tender his record, see Ark. R. Civ. App. P. 5(b), but

apparently the motion was never acted on. More than six months later, well after the

time allotted to file his record had elapsed, and beyond the date to which the trial court

could have in any event extended the time to tender the record, Mr. Lovell sought a

writ of mandamus from the Arkansas Supreme Court, requesting that it order the

appropriate circuit clerk to submit the record. The record was finally produced about

two weeks thereafter.

When Mr. Lovell then petitioned the Arkansas Supreme Court for a belated

appeal, see Ark. R. Crim. App. P. 2(e), the court denied his motion. In doing so, the

court, treating the motion as one for a rule on the clerk to lodge the record, explained

that litigants "bear responsibility for conforming to the rules of procedure or

demonstrating a good cause for not doing so," Lovell v. State, Cr. No. 96-301, at 2

(Ark. S. Ct. May 6, 1996) (per curiam) (not published). Since Mr. Lovell did not file

an affidavit explaining why he had a "good reason" for tendering his record late, see

Ark. R. Crim. App. P. 2(e), the court refused him permission to proceed. Mr. Lovell

then filed the present petition under 28 U.S.C. § 2254.

The state of Arkansas argued to the district court2 that Mr. Lovell had defaulted

on the claims raised in his petition because he had failed to perfect his appeal from the

trial court's denial of post-conviction relief. The district court agreed and dismissed the

petition. We affirm.
-3-

I.

Mr. Lovell maintains, first, that the default with which he is charged should not

bar his petition here because it did not result from an adequate and independent state

ground for rejecting his appeal. See Johnson v. Mississippi, 486 U.S. 578, 587 (1988);

see also Reed v. Ross, 468 U.S. 1, 8 n.5, 11 (1984). He asserts that the rule that the

Arkansas Supreme Court applied to him in denying his motion for a belated appeal is

not " 'strictly or regularly followed,' " Hathorn v. Lovorn, 457 U.S. 255, 263 (1982),

quoting Barr v. City of Columbia, 378 U.S. 146, 149 (1964). 

The only evidence that Mr. Lovell adduces in support of this last proposition

comes from a dissenting opinion in Bragg v. State, 297 Ark. 348, 760 S.W.2d 878

(1988) (per curiam), in which a justice of the Arkansas Supreme Court asserted that

the procedures for preparing a record for pro se appellants varied widely from county

to county in Arkansas: In some counties, he said, transcripts are prepared whenever

an indigent party files a notice of appeal, in others the circuit judge informs the clerk

that an appellant is indigent whereupon a record is prepared, and in still others the

appellant must personally contact the court reporter before a record will be prepared.

See id., 297 Ark. at 351, 760 S.W.2d at 879-80 (Hickman, J., dissenting).

We do not know, first of all, whether the foregoing summary accurately

describes the current Arkansas practice, and there is nothing in the record about it one

way or the other. More fundamentally, however, we believe that the variation in

practice outlined is beside the point. It is the regularity with which the Arkansas

Supreme Court applies some relevant rule that is at stake here, and the relevant rule is

Ark. R. Crim. App. P. 2(e), which allows the Arkansas Supreme Court to proceed to

adjudicate an appeal if a record is tendered late "when a good reason ... is shown by

affidavit." This is a grace that an appellant may request by moving for a rule on the

clerk to file the record. See Ark. S. Ct. R. 2-2. In the present case, however,

Mr. Lovell offered no reason whatever to the Arkansas Supreme Court for his failure

to lodge his record on time, and so the court's dismissal of his motion was quite
-4-

obviously in keeping with its rules governing the timeliness of appeals. As far as we

can tell, the Arkansas Supreme Court consistently applies its rule that an appellant must

offer a good reason before he or she can file a record out of time, and Mr. Lovell does

not direct our attention to any case that would indicate the contrary.

Mr. Lovell also asserts that the state's disposition of his appeal did not furnish

an adequate ground on which to base a default because the Arkansas Supreme Court

misapplied its own rule to him. He maintains that Ark. R. Crim. App. P. 2(c)(2)

requires only that an indigent appellant include a request for a transcript in his or her

notice of appeal in order to be entitled to have the appeal proceed. The short answer

to this argument is that the Arkansas Supreme Court gets to interpret its own rules, and

even if it does so "wrongly," an order based on such an interpretation can furnish the

basis for a default for habeas purposes, especially if the "mistake" is consistently made.

Besides, although our agreement is beside the point, we see no error whatever in the

Arkansas Supreme Court's interpretation and application of the relevant rules.

II.

Mr. Lovell also asks us to excuse his default because the rule that resulted in his

appeal being dismissed is designed to frustrate, or has the effect of frustrating, the

assertion of federal rights, and thus is not adequate to bar habeas review. See James

v. Kentucky, 466 U.S. 341, 348 (1984), and Michel v. Louisiana, 350 U.S. 91, 93

(1955). The legal principle that Mr. Lovell invokes is, we recognize, an

unexceptionable one, but we see no occasion to apply it to the facts of this case. There

is nothing inherently unreasonable in requiring Mr. Lovell to include in his petition, or

in its accompanying papers, a sworn statement outlining why he believes that he had

good reason for his delay in lodging the record. We see nothing, moreover, in the sum

of the relevant Arkansas procedural rules that renders them so burdensome as to make

them inadequate for habeas purposes. The Arkansas procedure simply has not raised

"an insuperable barrier," Michel, 350 U.S. at 93, to the vindication of federal rights. 
-5-

III.

Mr. Lovell's final argument for relief from his default is that even if the state rule

is adequate, he is excused because it was the state, through its inaction, that caused the

record to be filed untimely. He urges us to hold that the circuit clerk's or court

reporter's failure to provide the record was an "objective factor external to the defense"

that "impeded [his] efforts to comply with the State's procedural rule," Murray v.

Carrier, 477 U.S. 478, 488 (1986). See Dorman v. Wainwright, 798 F.2d 1358, 1370

(11th Cir. 1986), cert. denied, 480 U.S. 951 (1987).

It may well be true that if the circuit clerk or court reporter had timely tendered

the record, Mr. Lovell would not have defaulted on his claim. But we do not think that

this is enough to make the clerk's or court reporter's inactivity the cause, as that term

is used in habeas cases, of Mr. Lovell's default. Rather, we believe that Mr. Lovell

caused his own default by not pursuing the remedies that Arkansas law afforded him.

The state suggests, for instance, that Mr. Lovell could have filed a partial record, if any,

and moved the Arkansas Supreme Court for an extension of time to lodge his record

on account of unavoidable casualty. See Yent v. State, 279 Ark. 268, 269, 650 S.W.2d

577, 578 (1983) (per curiam), and In re Estate of Wilkinson, 311 Ark. 311, 312, 843

S.W.2d 316, 317 (1992) (per curiam).

It seems to us that this method of obtaining permission to lodge a record beyond

the seven months allowed by the applicable rule is intended for use only in civil cases

in Arkansas. We conclude, however, that the Arkansas Supreme Court would allow

a record to be lodged tardily in a criminal case if it were shown that the delay was due

to the dereliction of the circuit clerk or the court reporter. We believe that if Mr. Lovell

had attached an affidavit to his motion for a belated appeal that stated that his record

was tardy because the relevant court officials failed to do their duty, the Arkansas

Supreme Court would have allowed the appeal to proceed (if, of course, it satisfied

itself that the facts stated in the affidavit were true). In other words, we think that this

kind of failure of the system would be a "good reason" to allow the appeal to proceed
-6-

under Ark. R. Crim. App. P. 2(e). Mr. Lovell directs our attention to no case to the

contrary. He does point to various Arkansas cases that he asserts stand for the

proposition that a circuit clerk or court reporter "can never be held to blame for the

failure to timely file the record with the Arkansas Supreme Court," but we think that

this overstates the matter considerably. 

It is true that some Arkansas cases contain rather broad language about the

duties of lawyers and litigants with respect to perfecting an appeal. For instance, in

Finley v. State, 281 Ark. 38, 39, 661 S.W.2d 358, 359 (1983) (per curiam), the court

asserted that "[i]t is the duty of counsel, not the judge, not the clerk, not the reporter,

to perfect an appeal." But the holding in that case was based on the court's conclusion

that it was counsel's fault that an order had not been entered on time, and the court

offered the instructive comment that "[i]t is not often the case [that] an official refuses

to perform a duty; invariably ... counsel expects the officials to do the work of counsel."

Id. These words carry the implication that if an official had in fact refused to do his or

her duty, the court would have allowed the record to be lodged tardily. Other similar

cases reveal that behind the Arkansas Supreme Court's refusal to allow an appeal to

proceed lay some failure of a pro se appellant or counsel to follow the rules or act

diligently to perfect an appeal. See, e.g., Bragg v. State, 297 Ark. 348, 350, 760

S.W.2d 878, 879 (1988) (per curiam).

Further evidence that the failure of court officials or employees to perform their

duties would constitute a "good reason" under Ark. R. Crim. App. P. Crim. 2(e) to

allow a late tender of a record is provided in Porter v. State, 287 Ark. 359, 360, 698

S.W.2d 801, 802 (1985) (per curiam). In that case, the court granted a belated appeal

when the circuit clerk failed to notify a petitioner that his post-conviction petition had

been denied, causing the petitioner to file his notice of appeal out of time. We see no

relevant difference between Porter and the present case. The difficulty here, however,

is that Mr. Lovell did not explain his circumstances to the Arkansas Supreme Court in

an affidavit accompanying his petition. His petition was denied because he offered no
-7-

reason at all for his tardiness, not because his reason was not a good one on the merits.

The court did not reach the merits because it had none before it. See also Chiasson v.

State, 304 Ark. 110, 111, 798 S.W.2d 927, 927 (1990) (per curiam).

Our case is not like Buffalo v. Sunn, 854 F.2d 1158, 1165-66 (9th Cir. 1988),

where the court suggested that cause to excuse a default would be found if a pro se

petitioner were unable to meet a deadline because he was in lockdown. Nor is it like

Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990), where prison employees allegedly

interfered with the petitioner's access to administrative remedies. We think that it is

important to emphasize that although Mr. Lovell in his brief alludes obliquely to the

fact that he was an incarcerated, indigent defendant, he does not maintain that it was

impracticable for him to comply with Arkansas law. Indeed, some nine months after

his notice of appeal was filed, he attempted to file a flurry of petitions in the Arkansas

Supreme Court, asking for a writ of certiorari to the trial court, a belated appeal, or a

mandamus to the relevant court reporter. None of these petitions was filed because

Mr. Lovell had failed to comply with certain procedural requirements, and they were

all returned to him. But the point is that Mr. Lovell's range of action seems in no way

to have been hampered by the fact that he was incarcerated and indigent. 

IV.

In short, we believe that Arkansas law afforded Mr. Lovell the means to

prosecute his appeal, and he failed to avail himself of them. Since he caused his own

default, the default cannot be excused. Because the procedural requirements imposed

on Mr. Lovell were reasonable, we reject as well Mr. Lovell's claim that he was not

afforded due process in his effort to appeal his case.

For the reasons indicated, we affirm the judgment of the district court.
-8-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.