Avery v. State
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Cite as 2009 Ark. 528
SUPREME COURT OF ARKANSAS
No.
CACR 04-395
Opinion Delivered
RODELL AVERY, JR.
Petitioner
October 29, 2009
PRO SE MOTION FOR DUPLICATION
OF RECORDS AT PUBLIC EXPENSE
[CIRCUIT COURT OF CALHOUN
COUNTY, CR 2002-35, CR 2002-38]
v.
STATE OF ARKANSAS
Respondent
MOTION DENIED.
PER CURIAM
In 2003, petitioner Rodell Avery, Jr., was found guilty by a jury of aggravated robbery, three
counts of kidnapping, and second-degree escape. He was sentenced as a habitual offender to an
aggregate term of 480 months’ imprisonment. The Arkansas Court of Appeals affirmed. Avery v. State,
93 Ark. App. 112, 217 S.W.3d 162 (2005).
Now before us is petitioner’s motion for duplication at public expense of certain documents and
hearing transcripts contained in the direct appeal record.1 Included with the motion is petitioner’s
affidavit of indigency. Additionally, pursuant to the Arkansas Freedom of Information Act (“FOIA”),
codified as Arkansas Code Annotated §§ 25-19-101–to109 (Repl. 2002 & Supp. 2007), petitioner
requests a copy of the decision rendered by the court of appeals.
The FOIA does not require a court to provide photocopying at public expense. Moore v. State,
324 Ark. 453, 921 S.W.2d 606 (1996) (per curiam). Also, indigency alone does not entitle a petitioner
to free photocopying. Nooner v. State, 352 Ark. 481, 101 S.W.3d 834 (2003) (per curiam). To
1
For clerical purposes, the motion has been filed under the docket number assigned to the direct
appeal of the judgment.
Cite as 2009 Ark. 528
demonstrate entitlement to photocopying at public expense, the burden is on the petitioner to establish
some compelling need for certain documentary evidence to support an allegation contained in a timely
petition for postconviction relief. Bradshaw v. State, 372 Ark. 305, 275 S.W.3d 173 (2008) (per curiam).
Here, petitioner seeks a copy of eleven items.2 He maintains in the motion that he intends to
use the items to support a petition for writ of habeas corpus that has been, or will be, filed in state court
in order to establish that the trial court lacked jurisdiction over the second-degree escape charge. The
allegation that the court lacked jurisdiction, however, amounts to no more than a conclusory statement
as petitioner fails to set out the specific legal and factual basis for the argument. A conclusory claim to
be raised in a petition for postconviction relief is not grounds to grant a motion for photocopying at
public expense because it does not establish a compelling need for a particular document.
It should be noted that when an appeal has been lodged in either this court or the court of
appeals, all material related to the appeal remains permanently on file with our clerk. Persons may
review the material in the clerk's office and photocopy all or portions of it. An incarcerated person
desiring a photocopy of material related to an appeal may write this court, remit the photocopying fee,
and request that the copy be mailed to the prison. All persons, including prisoners, must bear the cost
of photocopying. Layton v. State, 2009 Ark. 438 (per curiam).
Motion denied.
2
Petitioner seeks copies of (1) the felony information filed in the criminal case, (2) trial testimony of
Rick Steelman, (3) trial testimony of Pam Simmons, (4) trial testimony of Raymond Naylor, (5) trial testimony
of Terry Clark, (6) jury instructions, (7) bond hearing testimony of Pam Simmons, (8) bond hearing testimony
of Terry Clark, (9) opening statement of the prosecutor, (10) opening statement of trial counsel, and (11) the
court of appeals’ decision in Avery v. State, supra.
2
Cite as 2009 Ark. 528
3
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