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to the Arkansas Supreme Court—which denied their
motion—and never submitted their fee request to the
trial court within the time period provided by ARK. R.
CIV. P. 54(e). Now, committed to that course, Petitioners argue that the Arkansas Supreme Court was the
proper court in which to file their fee motion and that
their motion was timely filed. But that is incorrect as
a matter of Arkansas law. Nevertheless, as explained
below, even if the Arkansas Supreme Court were the
proper court to consider Petitioners’ fee request, their
motion was filed nineteen days late and that procedural default precludes any fee award.
Yet no matter which of the various positions Petitioners have taken is correct, there is an adequate and
independent state law ground accounting for the Arkansas Supreme Court’s denial of their motion for
appellate fees. The Arkansas Supreme Court’s unreasoned denial of Petitioners’ motion following Petitioners’ procedural default does not mention federal law at
all, let alone “fairly appear[ ]” to rest on it. Long, 463
U.S. at 1040. On the contrary, there is every reason to
believe Petitioners’ motion was denied due to their
state law procedural default, rather than on the federal law considerations governing the merits of their
motion.
For example, Respondent initially did not file a
response to Petitioners’ fee motion in the Arkansas
Supreme Court. Respondent subsequently requested
leave to file a belated response to Petitioners’ motion
and tendered his response disputing Petitioners’ fee request under the governing law. Rather than consider