MOTION FOR BELATED APPEAL OF ORDER [LEE COUNTY CIRCUIT COURT,
NO. 39CV-16-74] HONORABLE RICHARD L. PROCTOR, JUDGE
Curtis Ray Howard is incarcerated in a unit of the Arkansas
Department of Correction located in Lee County. On July 1,
2016, he filed in the Lee County Circuit Court a pro se
petition for writ of habeas corpus, seeking release from
custody. On August 2, 2016, an order was entered denying the
petition. Thirty-five days later, on September 6, 2016,
Howard filed an untimely notice of appeal.
before us is Howard's pro se motion seeking to proceed
with a belated appeal of the August 2, 2016 order. Arkansas
Rule of Appellate Procedure -Civil 4(a) (2016) requires that
a notice of appeal be filed within thirty days of the date an
order is entered. Here, the thirty-day period to file a
timely notice of appeal ended Thursday, September 1, 2016.
habeas proceeding is a civil matter, a petitioner may seek to
proceed with a belated appeal of a ruling on a petition for
postconviction relief, which includes the denial of a
petition for writ of habeas corpus. See Sillivan v.
Hobbs, 2014 Ark. 88 (per curiam); see also Wesley v.
Harmon, 2010 Ark. 21, at 2. However, a belated appeal
will not be allowed absent a showing by the petitioner of
good cause for the failure to comply with proper procedure by
filing a timely notice of appeal and perfecting the appeal to
this court. Wesley, 2010 Ark. 21, at 2. This court
has consistently held that the burden to conform to
procedural rules applies even where the petitioner proceeds
pro se, as all litigants must bear the responsibility of
conforming to the rules of procedure or demonstrating good
cause for not so conforming. McDaniel v. Hobbs, 2013
Ark. 107, at 2 (per curiam). The pro se appellant receives no
special consideration on appeal. Id. at 3. This
court has made it abundantly clear that it expects compliance
with the rules of this court so that appeals will proceed as
expeditiously as possible. Day v. Hobbs, 2014 Ark.
189, at 3 (per curiam).
alleges that he placed his notice of appeal in the
institutional mail on August 2, 2016, which was the day that
the order was entered denying the habeas petition. He argues
that the notice of appeal should be considered timely
pursuant to Houston v. Lack, 487 U.S. 266 (1988).
Houston stands for the proposition, generally known
as the "prison mailbox rule, " that a notice of
appeal in some federal-court matters is considered filed by a
pro se prisoner when he delivers it to prison authorities for
Rule of Criminal Procedure 37.2 (2016) now includes a
provision under which a Rule 37.1 petition will be deemed
filed on the date that an incarcerated inmate deposited his
or her petition in the prison facility's legal mail
system, provided the conditions that are set out in the Rule
have been satisfied. A similar provision is included in
Arkansas Rule of Appellate Procedure -Criminal 2(b)(3) (2016)
that allows an exception to the filing deadline, when certain
conditions are met, for a notice of appeal of a judgment of
conviction in circuit court or a circuit court order that
denied postconviction relief under Rule 37. Ark. R. Crim. P.
37.2(g); see Anderson v. Kelley, 2016 Ark. 46, at 2
(per curiam). The requirements set out in the Rule do not
apply to other pleadings that may be filed by incarcerated
persons. As to Houston, we have held that
Houston is an interpretation of a federal rule of
appellate procedure and is not, in and of itself, dispositive
of this court's decision to grant or deny a motion for
belated appeal. See Key v. State, 297 Ark. 111, 759
S.W.2d 567 (1988).
it appears the record does not support Howard's
contentions. He argues that he mailed the notice of appeal on
August 2, 2016, that the envelope was post-marked August 2,
and that the clerk acknowledged receipt on August 2. However,
the record reflects that Howard signed his notice of appeal
on August 26, that the envelope was post-marked on September
1, the notice of appeal was filed on Sept 5, and the letter
from the clerk certifying the reorder was dated Sept. 15.
Even if the notice was placed in the prison mail as Howard on
August 26, the date he signed it, he fails to so much as
allege that the notice was not sent from the prison without
undue delay, that it was delayed by the postal service once
it had been mailed, or that the clerk received it before the
notice was due but did not file-mark it when received. There
is clearly incongruity in Howard's allegations. See
McClinton v. State, 2016 Ark. 461, at 3-4 (This court
took note that it was incongruous that mail delivery from
Grady, Arkansas, to Pine Bluff, Arkansas, amounted to seven
days.) Howard has not explained in any fashion the cause for
the lengthy delay in the delivering or filing of the notice,
assuming he placed it in the prison mailbox on August 26.
has not demonstrated that there was any good cause for the