Cook v. Lockhart, 88-2705

Citation878 F.2d 220
Decision Date19 September 1989
Docket NumberNo. 88-2705,88-2705
PartiesJames Robert COOK, Appellant, v. A.L. LOCKHART, Director Arkansas Department of Correction, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Janie W. McFarlin, Little Rock, Ark., for appellant.

David Eberhard, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before McMILLIAN and FAGG, Circuit Judges, and HEANEY, Senior Circuit Judge.

PER CURIAM.

James Robert Cook, an Arkansas prisoner, appeals from the final order of the district court 1 for the Eastern District of Arkansas dismissing his petition for a writ of habeas corpus. The district court concluded that Cook's claims were barred because they either had been decided against him in his previous habeas action or should have been raised therein. We affirm.

Cook's 1983 convictions, as an habitual offender, for kidnapping and aggravated robbery, and 1984 conviction, as an habitual offender, for a different kidnapping were affirmed by the Arkansas Supreme Court in Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984), and Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984) respectively. It is undisputed that Cook exhausted available state court remedies.

With the assistance of appointed counsel, Cook then filed a petition for federal habeas corpus relief claiming (1) the Arkansas kidnapping statute was vague and overbroad on its face and as applied; (2) insufficient evidence in both cases to convict him; (3) prosecutorial misconduct in holding a pretrial conference with a state witness; (4) ineffective assistance of counsel in failing to inquire into this pretrial conference, to object to the admission into evidence of a pistol, and to cross-examine adequately the victim of the 1984 kidnapping; and (5) the trial court unduly restricted counsel's closing argument.

The district court 2 adopting the magistrate's 3 fifteen-page report and recommendation submitted following an evidentiary hearing, denied relief, and denied Cook's subsequent application for a certificate of probable cause. This court also denied Cook's application and dismissed his appeal as frivolous. Cook v. Lockhart, No. 87-2294 (8th Cir. Oct. 12, 1987) (order).

On May 18, 1988, Cook filed the instant pro se petition for a writ of habeas corpus, claiming he was denied the right to testify in his own behalf in the second criminal case, he had ineffective assistance of counsel in both cases, the state erred in trying him as an habitual offender based on a felony conviction which was more than ten years old and the prosecutor improperly informed the jury of this prior conviction, there was insufficient evidence in both cases to convict him, and the prosecutor withheld valuable information from the defense. In response to the state's motion to dismiss the petition under Rule 9(b) of the Rules Governing Section 2254 Cases as a successive petition and an abuse of the writ, Cook asserted his innocence of the 1984 kidnapping, claiming that the arresting detectives took his bus ticket stub which showed that he was on a bus when the crime took place. He stated that he informed his attorney of this and brought the matter to the attention of the trial court and state supreme court, but that the claim went unanswered. Cook reasserted the claims raised in his pro se petition and requested appointment of counsel.

In response to the district court's order requiring Cook to explain why his petition should not be barred as a successive petition under Rule 9(b), Cook argued that the district court did not properly address all the claims raised in the first petition, and that after the first petition was filed he obtained information supporting his claim that the pistol should have been suppressed.

The magistrate, applying the guidelines set forth in Sanders...

To continue reading

Request your trial
11 cases
  • Bannister v. Delo, 94-3902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 15, 1995
    ...on facts or legal theories of which he had no knowledge when prosecuting his prior habeas petition.'" Id. (quoting Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989)). Moreover, as the state points out, in his previous appeal Bannister did not challenge the district court's holding that hi......
  • Denton v. United States, CASE NO. 3:14-CV-8052-SLB
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • June 11, 2018
    ...but previously available, legal theory. United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000)(citing Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989)). Also, challenges that were available but not raised on direct appeal are procedurally defaulted: "Under the procedural default r......
  • Blue Thunder v. U.S. Parole Comm'n
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • November 18, 2013
    ...theories of which he had no knowledge when prosecuting his prior habeas petition,'" in order to avoid dismissal, see, Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir. 1989), quoting Williams v. Lockhart, 862 F.2d 155, 158, 159 (8th Cir. 1988), or that a fundamental miscarriage of justice would......
  • Nachtigall v. Class, 94-1943
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 1, 1995
    ...dismissal of Nachtigall's petition for abuse of discretion. Williams v. Groose, 979 F.2d 1335, 1337 (8th Cir.1992); Cook v. Lockhart, 878 F.2d 220, 222 (8th Cir.1989). "A district court can dismiss as successive a habeas petition asserting identical grounds for relief raised and decided adv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT