1

The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the

Eastern District of Arkansas, to whom the case was referred for final disposition by

consent of the parties pursuant to 28 U.S.C. § 636(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-3772

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Benjamin Williams, Jr., *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the

Larry Norris, Director, Arkansas * Eastern District of Arkansas.

Department of Correction, *

* [UNPUBLISHED]

Appellee. *

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Submitted: November 29, 2006

Filed: December 5, 2006

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Before RILEY, COLLOTON, and GRUENDER, Circuit Judges.

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PER CURIAM.

Benjamin Williams, Jr. appeals the district court’s1

 denial of 28 U.S.C. § 2254

habeas petition. Reviewing de novo the district court’s conclusion that Williams

procedurally defaulted his claims, we affirm. See Frasier v. Maschner, 304 F.3d 815,

817 (8th Cir. 2002) (standard of review).
2

Williams does not argue alternatively that he could establish actual innocence

to excuse his procedural default, and we do not see any basis for such a conclusion.

-2-

Williams concedes that at least two of his three claims are procedurally

defaulted because he did not properly appeal the denial of postconviction relief in state

court. See Reagan v. Norris, 279 F.3d 651, 656 (8th Cir. 2002). He argues that the

district court was not barred from considering these claims, however, because his

failure to appeal properly his state petition for postconviction relief was due to the

Pulaski County clerk’s tardiness in preparing the documents necessary to perfect the

appeal. This does not excuse his default, however, because he had adequate state

remedies that he did not exhaust prior to filing his federal petition. See Lovell v.

Norris, 198 F.3d 674, 677-79 (8th Cir. 1999) (refusing to excuse § 2254 petitioner’s

procedural default where he failed to avail himself of state court remedies for curing

default prior to bringing federal habeas petition). Williams was informed his record

was untimely roughly five months after judgment in his state postconviction

proceeding, but an Arkansas litigant may lodge a belated appeal for up to eighteen

months after judgment. See Ark. R. Crim. App. P. 2(e) (Arkansas “Supreme Court

may act upon and decide a case in which . . . the transcript of the trial record was not

filed in the time prescribed, when a good reason is shown by affidavit” so long as

appeal is within eighteen months of judgment); Lovell, 198 F.3d at 678 (Arkansas

cases indicate that “the failure of court officials or employees to perform their duties

would constitute a ‘good reason’ under [Rule] 2(e)”) (citing Porter v. State, 698

S.W.2d 801, 802 (Ark. 1985) (per curiam)). Williams failed to avail himself of this

procedure, and thus has not established cause for his default.2

Williams further argues that the trial court should have admonished the jury to

disregard the prosecutor’s rhetorical question, posed during closing argument, asking

what motivation the state could have to concoct a conspiracy against Williams.

Williams objected to this statement, and his objection was sustained, but he did not

seek any curative action. In his direct appeal, the Arkansas Court of Appeals
-3-

concluded the issue was not preserved due to Williams’s failure to seek further action.

See Williams v. State, No. CACR 00-429, 2002 WL 22069 at *4 (Ark. Ct. App. Jan.

9, 2002) (unpublished decision). Thus, we are precluded from considering the issue

unless Williams can establish cause and prejudice for his default. See Reagan, 279

F.3d at 656. Williams contends that his trial counsel was ineffective for failing to

request curative action, and that this excuses his default in state court. See id. Like

his other ineffective-assistance claims, however, this claim was never exhausted in

state court. Thus, it cannot serve as cause to excuse the default. See Frasier, 304 F.3d

at 817 (for ineffective assistance of counsel to constitute cause for procedural default,

petitioner must first raise issue in state court as an independent ground for relief, if

available).

For the reasons stated herein, we affirm the judgment of the district court.

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