MOTION FOR BELATED APPEAL [PHILLIPS COUNTY CIRCUIT COURT, NO.
54CR-91-306] HONORABLE RICHARD L. PROCTOR, JUDGE.
A. WOMACK, Associate Justice.
Calvin Lee Marshall brings a motion for belated appeal of an
order entered denying his pro se petition for scientific
testing under Act 1780 of 2001 Acts of Arkansas, as amended
by Act 2250 of 2005 and codified as Arkansas Code Annotated
sections 16-112-201 to -208 (Repl. 2016). We treat the motion
as one for rule on clerk and deny it.
1992, a jury convicted Marshall on charges that he kidnapped,
raped, and murdered one victim and murdered another. Marshall
received an aggregate sentence of life without parole, and
this court affirmed the judgment on appeal. Marshall v.
State, 316 Ark. 753, 875 S.W.2d 814 (1994). On March 4,
2016, Marshall filed in the trial court a petition for leave
to proceed in forma pauperis on a pro se petition in which he
sought scientific testing under Act 1780. The Act 1780
petition was also filed on the same date. On March 22, 2016,
the circuit court entered an order finding that the in forma
pauperis petition was denied "due to venue issues,
" and on October 21, 2016, an order was entered denying
the Act 1780 habeas petition. Marshall filed a notice of
appeal for the October 21 order on November 8, 2016, and
another on November 16, 2016. Both notices were timely
December 29, 2016, Marshall filed in the trial court another
petition to proceed in forma pauperis. This time the petition
sought to proceed with a motion for rule on clerk in which
Marshall sought to have the circuit clerk provide him with
the certified record to appeal the October 21, 2016 order and
alleged that the clerk's refusal to do so was in
violation of Act 1780. The motion for rule on clerk submitted
with the petition was not filed in the trial court, and on
February 2, 2017, Marshall filed another in forma pauperis
petition that sought to proceed with a notice of appeal in
which Marshall contended that the unfiled motion for rule on
clerk had been "deemed denied." A different judge
entered an order on February 2, 2017, granting the new in
forma pauperis petition to proceed with the notice of appeal.
The notice of appeal was filed that same day, and the record
on appeal was then tendered to this court on March 20, 2017.
The clerk declined to file the record on the basis that it
was not tendered within ninety days of the November 8, 2016
notice of appeal.
then filed his pro se motion for belated appeal in this
court. In his motion, Marshall requests permission to lodge
the record and proceed with an appeal of the October 21, 2016
order denying the Act 1780 petition on the basis that his
appeal has been "illegally thwarted" by the circuit
clerk and that Act 1780 required his appeal to go forward
without cost despite the denial of his petition to proceed as
a pauper on the Act 1780 petition. Marshall does not request
permission to proceed with an appeal on the denial of the in
forma pauperis petition or contend that he should be
permitted to appeal what he had alleged was the "deemed
denied" order on the unfiled motion for rule on clerk.
the notice of appeal of the October 21, 2016 order was
timely, we treat Marshall's motion as one for rule on
clerk. Holland v. State, 358 Ark. 366, 367, 190
S.W.3d 904, 905 (2004) (per curiam); see also King v.
State, 2016 Ark. 450 (per curiam) (holding moot a motion
for belated appeal when notice of appeal was timely filed).
Arkansas Rule of Appellate Procedure-Criminal 4(b) (2016)
requires that the record be tendered to this court within
ninety days of the date of the notice of appeal. Even if the
earlier of the two notices of appeal was invalid and the
later filing date for the second notice was used for the
calculation of the ninety-day deadline to submit the record
under Rule 4(b), the time expired on February 14, 2017-well
before the record was tendered to this court on March 20,
does not contend that the record was submitted within the
required time. Instead he alleges that the clerk's
failure to provide him with a certified record caused the
delay. The duty to conform to procedural rules applies even
when the petitioner proceeds pro se, as all litigants must
bear the responsibility for conforming to the rules of
procedure or demonstrating good cause for not so conforming.
King, 2016 Ark. 450. When a petitioner fails to
perfect an appeal in accordance with the prevailing rules of
procedure, the burden is on the petitioner, even if he is
proceeding pro se, to establish good cause for failure to
comply with the procedural rules. Clemons v. State,
2014 Ark. 454, 446 S.W.3d 619 (per curiam). It is true, as
Marshall contends, that Act 1780 prohibits any charge for
fees or bond for costs to bring an appeal of the denial of an
order on a petition under the Act. Ark. Code Ann. §
16-112-206(c). We need not consider Marshall's claim that
this provided him with good cause for the delay in this case,
however, because he cannot prevail on appeal.
appeal of the denial of postconviction relief, including an
appeal from an order denying a petition for writ of habeas
corpus under Act 1780, will not be permitted to go forward
when it is clear that the appellant could not prevail.
Wells v. State, 2017 Ark. 88, __S.W.3d__ (per
curiam). Because Marshall failed to state a basis on which
the trial court could have ordered scientific testing under
the statutes, he cannot prevail on appeal.
1780 provides that a writ of habeas corpus may be issued
based on new scientific evidence proving a person actually
innocent of the offense for which he was convicted. Ark. Code
Ann. § 16-112-201; Hill v. State, 2016 Ark.
258, 493 S.W.3d 754 (per curiam). Under the statute, when a
petitioner fails to provide factual support for the claim
that there is scientific evidence that bears on his case, he
has failed to demonstrate that he is entitled to relief.
Id. Arkansas Code Annotated section 16-112-202
requires that a petitioner who requests relief and who seeks
scientific testing to provide the basis for his relief must
identify evidence for testing that meets specific criteria
set out in the statute, and the evidence identified must meet
certain predicate requirements under the statutes.
Clemons, 2014 Ark. 454, 446 S.W.3d 619. If the
petitioner does not state the specific scientific evidence to
be tested, then his petition is wholly without merit under
the statute. Darrough v. State, 2014 Ark. 334, 439
S.W.3d 50 (per curiam).
Darrough, Marshall's pro se Act 1780 petition
failed to identify any specific evidence that he would have
tested, despite the petition indicating that certain
attachments would do so. The trial court, however, appears to
have denied the petition because it found that the petition
contained no allegations that the judgment in Marshall's
case imposed an illegal sentence or was illegal on its face
or that the trial court lacked jurisdiction in the case.
addition to his request for scientific testing, Marshall
raised claims in the petition that were not cognizable under
Act 1780. Petitions under the Act are limited to those claims
related to scientific testing of evidence. Hill,
2016 Ark. 258, 493 S.W.3d 754. The Act does not provide an
opportunity for the petitioner to raise issues outside the
purview of the Act, and a petition under the Act does not
serve as a substitute for the pursuit of other remedies.
Id. Yet, Marshall was incarcerated in Lee County
when he filed his petition, and because he was not in custody
in Phillips County when he filed his petition and
specifically identified Act 1780, his petition should have
been considered under the Act as one for scientific testing
rather than under Arkansas Code Annotated sections 16-112-101
to -123 (Repl. 2016). See Clemons v. State, 2013
Ark. 18 (per curiam).
court will affirm the circuit court's decision because it
reached the right result, albeit for the wrong reason.
White v. State, 2015 Ark. 100, 460 S.W.3d 279 (per
curiam); Jones v. State, 347 Ark. 409, 64 S.W.3d 728