Russell v. Webb
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Arkansas Supreme Court?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Arkansas Supreme Court. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Petitioner was found guilty by a jury of solicitation to commit capital murder. Subsequently, Petitioner filed in the trial court a pro se petition for postconviction relief. Later, Petitioner filed a motion to amend the petition and then filed an amended petition, which was not verified. The trial court entered an order denying and dismissing the amended petition for postconviction relief. Petitioner appealed, and the Supreme Court granted the State's motion to dismiss the appeal. Petitioner then filed a pro se petition for writ of mandamus, contending that the circuit court judge had not acted on the original petition. The Supreme Court denied the petition, holding that by appealing the trial court's order, Petitioner elected to forego the remedy that was available to him of filing a motion for reconsideration, and Petitioner was not entitled to a writ of mandamus to afford him the opportunity to pursue that remedy.
Download PDF
Cite as 2011 Ark. 307
SUPREME COURT OF ARKANSAS
No.
CR 11-352
Opinion Delivered
THURMAN RUSSELL
Petitioner
July 27, 2011
PRO SE PETITION FOR WRIT OF
MANDAMUS [BAXTER COUNTY
CIRCUIT COURT, CR 2005-58]
v.
HON. GORDON WEBB, CIRCUIT
JUDGE
Respondent
PETITION DENIED.
PER CURIAM
In 2006, petitioner Thurman Russell was found guilty by a jury of two counts of
solicitation to commit capital murder and sentenced to an aggregate term of 720 months’
imprisonment. The Arkansas Court of Appeals affirmed. Russell v. State, CACR 06-1425
(Ark. App. Dec. 10, 2008) (unpublished).
On February 19, 2009, petitioner filed in the trial court a timely verified pro se petition
for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011). On
March 18, 2009, he filed a motion to amend the Rule 37.1 petition, and, on June 12, 2009,
petitioner filed an amended petition, which was not verified. On September 11, 2009, the
court entered an order denying and dismissing the “amended petition for post-conviction
relief.” There was no specific mention in the order of the original Rule 37.1 petition filed
February 19, 2009. Petitioner could have filed a motion asking the court to address any
omitted issues that were contained in the original petition. We have specifically held that a
request that the trial court modify its order to include an omitted issue is not a request for a
Cite as 2011 Ark. 307
rehearing and does not violate Rule 37.2(d), which provides that decisions under the rule are
final. See Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam); see also Beshears v.
State, 340 Ark. 70, 8 S.W.3d 32 (2000). Instead, petitioner elected to take an appeal from the
September 11, 2009 order. The appellee State filed a motion to dismiss the appeal, seeking
dismissal of the appeal solely on the failure of petitioner to verify the amended petition, noting
that the proper verification of the original petition did not cure the failure to verify the
amended petition in which a new allegation was raised. The State’s motion appeared to
assume that only the amended petition was ruled on by the court in the September 11, 2009
order. On June 24, 2010, this court granted the motion to dismiss the appeal by Per Curiam
Order.
On April 6, 2011, petitioner filed the pro se petition for writ of mandamus that is now
before us. Petitioner contended in the petition that the Honorable Gordon Webb, Circuit
Judge, had not acted on the original February 19, 2009 Rule 37.1 petition. In its response to
the mandamus petition, the respondent Judge Webb argued that the mandamus petition was
moot because the order of September 11, 2009, disposed of the original Rule 37.1 petition.
In a tendered response to the response, petitioner asserted that only the amended petition was
ruled on by the court in the September 11, 2009 order.
Because the order of September 11, 2009, referred to the “amended petition” only,
it was not clear whether the court’s order encompassed the original Rule 37.1 petition and
the amendment or merely the amended petition filed June 12, 2009. For that reason, we asked
2
Cite as 2011 Ark. 307
that the respondent submit an amended response to the mandamus petition specifying
whether the September 11, 2009 order disposed of both the original Rule 37.1 petition,
which was a properly verified petition, and the amended petition that was subject to dismissal
for lack of verification. Russell v. Webb, 2011 Ark. 156 (per curiam). We now have the
amended response.
In the amended response, the respondent avers that it was the court’s view when the
September 11, 2009 order was entered that the amended petition was intended to supersede
the original petition and that the court was thus ruling on all of petitioner’s grounds for relief
under Rule 37.1 when it disposed of the amended petition. Respondent contends that this
assumption was given credibility by the fact that petitioner chose to appeal from the order
rather than simply filing a motion asking the court to rule on the issues in the original
petition. Respondent asserts that he did not consider the original petition to still be an active
matter on the court’s docket after the appeal was taken. For that reason, respondent urges this
court to hold the mandamus action moot, inasmuch as there was no matter on the court’s
docket that required a ruling.
Now that the respondent has clarified the circumstances that figure in this mandamus
proceeding, we find that the respondent is correct that petitioner could have timely filed a
motion for reconsideration and asked that the court rule on the issues in the original petition
rather than opting to appeal from the order that was clearly limited to the amended petition.
By electing to appeal the September 11, 2009 order, petitioner elected to forego the remedy
3
Cite as 2011 Ark. 307
that was available to him of filing a motion for reconsideration. A writ of mandamus is
appropriate if three factors are established: (1) the duty to be compelled is ministerial and not
discretionary; (2) the petitioner has shown a clear and certain right to the relief sought; and
(3) the absence of any other adequate remedy. Parker v. Crow, 2010 Ark. 371, ___ S.W.3d
___. Here, petitioner had a remedy to achieve a ruling on the issues in the original Rule 37.1
petition and did not pursue it. He is not entitled to a writ of mandamus to afford him the
opportunity to pursue that remedy now. Accordingly, the petition for writ of mandamus is
denied.
Petition denied.
4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
