MOTION PURSUANT TO RULE 60 RELIEF FROM JUDGMENT ORDER WITH
LEAVE OF THE APPELLANT [SIC] COURT; PRO SE MOTION FOR
ARKANSAS RULE OF CIVIL PROCEDURE 55 DEFAULT [LINCOLN COUNTY
CIRCUIT COURT, NO. 40CV-17-90]
D. KEMP, CHIEF JUSTICE.
an appeal from an order entered by the circuit court denying
appellant Abraham Grant's pro se motion for relief from
judgment filed pursuant to Rule 60 of the Arkansas Rules of
Civil Procedure (2017). Grant's Rule 60 motion sought
relief from the circuit court's order that had denied his
pro se petition for writ of habeas corpus wherein he had
alleged that the judgment of conviction in his criminal case
was illegal on its face because he had been initially charged
with first-degree murder but was convicted of capital
murder. Grant did not appeal the order entered by
the circuit court that denied his pro se petition for a writ
of habeas corpus. As stated, this appeal is from the denial
of his motion under Rule 60 only. After the record on appeal
was lodged here, Grant filed a second pro se motion titled
pro se motion for Arkansas Rule 60 (b) relief. In the body of
his motion he references Rule 60(c) as a basis for this court
to vacate the circuit court's ruling. In his motion,
Grant asks this court to address the merits of his habeas
petition despite the fact that he failed to file a notice of
appeal from the order denying the habeas petition. Grant also
subsequently filed a motion for default judgment pursuant to
Arkansas Rule of Civil Procedure 55 (2017), wherein Grant
alleges that he is entitled to a default judgment due to the
State's failure to respond to his Rule 60 motion.
appeal from an order that denied a petition for
postconviction relief will not be permitted to go forward
where it is clear that the appellant could not prevail.
See Brown v. State, 2017 Ark. 232, 522 S.W.3d 791
(citing Justus v. State, 2012 Ark. 91). Rule 60(b)
provides, in pertinent part, that the court may at any time
correct clerical mistakes in judgments, decrees, or orders
arising from oversight or omission. Because neither Rule
60(b) nor Rule 60(c) are applicable as an avenue for relief
from a judgment of conviction or from an order that denies a
petition for writ of habeas corpus or other request for
postconviction relief, we dismiss the appeal, which renders
the motion moot. Ibsen v. Plegge, 341 Ark. 225, 15
S.W.3d 686 (2000) (we know of no case in which the court has
applied Rule 60 of the Arkansas Rules of Civil Procedure to a
criminal proceeding); see also McCuen v. State, 338
Ark. 631, 999 S.W.2d 682 (1999); Baker v. Norris,
369 Ark. 405, n.2, 255 S.W.3d 466 n.2 (2007) (The Arkansas
Rules of Civil Procedure have never been applied to
postconviction proceedings nor do they apply to a
postconviction habeas proceeding.).
has cited no authority and provided no convincing argument to
allow the application of Rule 60(b) or 60(c) as a means to
set aside an adverse ruling with respect to a habeas
petition, and we do not consider arguments that are not well
taken. Gay v. State, 2016 Ark. 433, 506 S.W.3d 851.
Grant failed to perfect an appeal from the denial of his
underlying habeas petition, and for the reasons stated above,
Grant is not entitled to postconviction relief through the
application of Rule 60 of the Arkansas Rules of Civil
Procedure. Finally, Grant has likewise provided no authority
or convincing argument for his proposition that he is
entitled to a default judgment pursuant to Rule 55 of the
Arkansas Rules of Civil Procedure and, as stated above, we do
not consider arguments that are not well taken. Id.
dismissed; motions moot.
Josephine Linker Hart, Justice, dissenting.
I do not agree that "appeal dismissed; motions
moot" is the proper disposition of this case, I must
dissent from the majority opinion. Grant did not file a
notice of appeal from the trial court's denial of his
habeas petition. Instead, Grant filed a notice of appeal from
the trial court's order denying his Rule 60(c) motion,
lodged the record with this court, and filed a document
titled "Motion - Arkansas - Rule 60" that he
plainly intended to serve as his argument on appeal, all in
timely fashion. I see no reason why this court should not
simply address Grant's arguments on the merits, and then
"affirm" or "reverse" accordingly.
Furthermore, I do not understand why this court is declaring
"moot" Grant's motion for default judgment;
said motion was filed in the circuit court, not the appellate
court, and we lack jurisdiction to address it.
In 2003, Grant was found
guilty by a jury of capital murder and first-degree battery.
An aggregate sentence of life without parole was imposed.
This court affirmed. Grant v. State, 357 Ark. 91,
161 S.W.3d 785 (2004). Grant's previous claim for
postconviction relief that he was arrested for first-degree
murder and subsequently charged with capital murder has been
rejected by this court as a ground for coram nobis relief.
Grant v. State, 2014 Ark. 466 (per curiam). In
denying his petition for coram nobis relief, this court noted
that the issue had been previously addressed and rejected in
an appeal from the denial of a ...