ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

October 9, 2003

DANIEL RISHER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-311

PRO SE MOTIONS FOR RULE ON CLERK TO FILE BELATED REPLY BRIEF, TO PRESERVE EVIDENCE, FOR LEAVE TO SUBMIT SUPPLEMENTAL ABSTRACT AND ADDENDUM IN THE EVENT THAT ABSTRACT FOUND DEFICIENT, AND TO NOTE ERROR IN PRIOR OPINION [CIRCUIT COURT OF COLUMBIA COUNTY, CR 91-93]

MOTION FOR RULE ON CLERK TO FILE BELATED REPLY BRIEF GRANTED; MOTIONS TO PRESERVE EVIDENCE, FOR LEAVE TO SUBMIT SUPPLEMENTAL ABSTRACT, AND TO NOTE ERROR IN PRIOR OPINION DENIED

Per Curiam

Daniel Risher and Nikki Zinger were found guilty of the murder of Zinger's mother and each was sentenced to life imprisonment. We affirmed. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). After the judgment was affirmed, Risher filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court. The petition was denied, and this court affirmed the order. Risher v. State, CR 94-508 (December 5, 1994).

On September 17, 2002, Risher filed in the trial court a petition for writ of habeas corpus pursuant to Act 1780, which he labeled an "amended petition." The petition was denied on November 26, 2002. Risher, proceeding pro se, has lodged an appeal of the order here. Nowbefore us are four motions filed by appellant Risher. For the sake of clarity, the motions will be treated separately.

1. Motion for Rule on Clerk to File a Belated Reply Brief

Appellant argues that the law library where he is incarcerated was closed for a period of time before the reply brief was due and that his duties at the prison further limited his ability to tender a timely brief. He has appended to the motion a copy of a memorandum from a prison official reflecting that the library was indeed closed as alleged. As this is the first extension of time requested by appellant in this appeal, we will permit the late tender of the reply brief. The tendered reply brief will be filed as of the date of this opinion.

2. Motion to Preserve Evidence

Appellant asks that this court direct the Magnolia Police Department to preserve certain evidence in its possession. The motion is one that should, and could have been, made to the court and settled when it was considering appellant's petition for writ of habeas corpus in the trial court.

3. Motion for Permission to Submit a Supplemental Abstract and

Addendum in the Event the Court Considers the Abstract Deficient

Appellant's motion to submit a supplemental abstract if this court finds that his brief isdeficient when we take up the case for final decision is premature. If on review of the appellant's brief, it is found to be deficient pursuant to Ark. Sup. Ct. R. 4-2(a)(5) (2002), appellant will be allowed fifteen days from the date of the opinion to file a substituted abstract and brief to conform to Rule 4-2(a)(5). Campbell v. State, 349 Ark. 111, 112, 76 S.W.3d 271, 272 (2002).

4. Motion to Note Error in Prior Opinion

Appellant next contends that there were several errors made in our opinion denying six motions that he filed earlier. Appellant has not been prejudiced in that a final decision has not been rendered on this appeal.

Motion for rule on clerk to file a belated reply brief granted; motions to preserve evidence, for leave to submit supplemental abstract, and to note error in prior opinion denied.