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

Townsell was convicted in Arkansas state court of attempted second-degree murder (charged as attempted capital murder), arson, and second-degree domestic battering.
He raised an ineffective-assistance claim in a Rule 37 postconviction motion: direct-appeal counsel failed to argue the trial court erred by refusing to instruct aggravated assault as a lesser-included offense of attempted capital murder.
The Rule 37 court dismissed Townsell’s motion but issued a letter rather than a formal written order; Townsell did not file an appeal from that disposition.
In a § 2254 petition, Townsell argued the absence of a final order and comments by the Rule 37 court suggesting lack of jurisdiction constituted cause for his procedural default in state court.
The district court denied relief and issued a certificate of appealability on the ineffective-assistance-for-failure-to-argue-lesser-included-instruction claim; the Eighth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether procedural default of Townsell’s Rule 37 claim is excused	Townsell: lack of a final written order and Rule 37 court remarks misled him and constituted cause to excuse default	State: Townsell had remedies (ask circuit court for a formal order or seek mandamus) and the comments did not excuse default	Held: No cause shown; default not excused
Whether Rule 37 court comments amounted to a jurisdictional bar to appeal	Townsell: comments indicated the court lacked jurisdiction, discouraging appeal	State: comments did not prevent appeal; petitioner could have sought a final order or mandamus	Held: Comments did not constitute cause to excuse default
Whether ineffective-assistance claim merits § 2254 relief on the merits (certified issue)	Townsell: counsel was ineffective for failing to argue trial court erred by refusing aggravated-assault instruction	State: claim procedurally defaulted and not excused; no relief warranted	Held: Court affirmed denial of § 2254 petition (default not excused); claim not reached on merits
Availability of state remedies for obtaining a final Rule 37 order	Townsell: impliedly argued remedies were inadequate or not pursued due to court’s conduct	State: remedies available—ask circuit court to enter findings or seek Arkansas Supreme Court mandamus	Held: Remedies available; failure to use them does not constitute cause

Coleman v. Thompson, 501 U.S. 722 (1991) (procedural-default framework: petitioner must show cause and prejudice or actual innocence to excuse default)
Clemons v. Delo, 124 F.3d 944 (8th Cir. 1997) (errors by postconviction counsel cannot constitute cause to excuse procedural default)
Lowe-Bey v. Groose, 28 F.3d 816 (8th Cir. 1994) (deficient performance of postconviction counsel cannot constitute cause)
Stanley v. Lockhart, 941 F.2d 707 (8th Cir. 1991) (pro se status and limited education do not constitute cause to excuse default)
Barrow v. State, 2012 Ark. 197 (Ark. 2012) (circuit courts remanded to enter written findings and conclusions under Rule 37.3)
Myers v. McCall, 2012 Ark. App. 669 (Ark. Ct. App. 2012) (noting mandamus to the Arkansas Supreme Court is the remedy when a final order cannot be obtained from the circuit court)