Allen v. State

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          PRO SE MOTIONS FOR BELATED APPEAL, TO CORRECT CIRCUIT COURT ORDER AND FOR BELATED APPEAL, FOR RULE ON CLERK, IN SUPPORT OF FILING BELATED APPEAL, FOR BRIEFING SCHEDULE AND APPOINTMENT OF COUNSEL, AND FOR EXTENSION OF BRIEF TIME [LEE COUNTY CIRCUIT COURT, NO. 39CV-16-89]

         OPINION

          COURTNEY RAE HUDSON, Associate Justice

          Petitioner D’Angelo Allen filed three pro se motions, each of which seeks leave to proceed with an appeal of the order entered June 19, 2018, that denied his petition for writ of habeas corpus. Because Allen failed to file a timely notice of appeal from the order, the three motions are treated as motions for belated appeal. See Matar v. State, 2017 Ark. 278, 2017 WL 4683754. The motions are denied. Allen also filed a motion to correct the circuit court’s order, a motion for a briefing schedule to be set for the appeal and for appointment of counsel, and for extension of brief time. As his request to proceed with a belated appeal is denied, those motions are moot.

          Allen filed his notice of appeal on August 2, 2018, which was forty-four days after the order had been entered. Arkansas Rule of Appellate Procedure-Civil 4(a) (2018) requires that a notice of appeal be filed within thirty days of the date an order is entered. As grounds for not abiding by the prevailing rules of procedure, Allen argues that his habeas petition had merit and that the order was not final because the court incorrectly stated in the order that he had been convicted of first-degree murder when he had been convicted of capital murder. He contends that the error in the order rendered it invalid, and for that reason, he should be permitted to proceed with an appeal. He also asserts that the circuit clerk delayed the filing of the notice of appeal.

          While habeas proceedings and proceedings under our postconviction rule,

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Arkansas Rule of Criminal Procedure 37.1 (2018), are civil matters, a petitioner may seek to proceed with a belated appeal of a ruling on a petition for postconviction relief that is civil in nature. See Robinson v. State, 2018 Ark. 406, 2018 WL 6695910. 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. Griffis v. State, 2017 Ark. 238, 2017 WL 3300573. This court has consistently held that the burden to conform to procedural rules applies even when 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. Marshall v. State, 2017 Ark. 208, 521 S.W.3d 456. 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.

         Allen’s contentions that his habeas petition had merit and should not have been denied and that it was not a final order do not constitute a showing of good cause for his failure to file a timely notice of appeal. When considering a motion based on the petitioner’s failure to abide by procedural rules, the merit of the underlying petition is not at issue. With respect to Allen’s allegation that the circuit clerk caused the late filing of the notice of appeal, the claim is not supported with facts from which it could be determined that the clerk made some error that would relieve Allen of responsibility for having not filed a timely notice of appeal. Accordingly, the sole question is whether Allen has established good cause for not abiding by the rules that govern the orderly administration of justice, and Allen has not met that burden.

         Motions for belated appeal, rule on clerk, and in support of filing belated appeal treated as motions for belated appeal and denied; motions to correct circuit court order and for briefing schedule and appointment of counsel, and for extension of brief time moot.

         Hart, J., dissents.

         Josephine Linker Hart, Justice, dissenting.

          The basis of Allen’s request for a belated appeal is that he had his notice of appeal notarized and sent to the courthouse for filing in timely fashion, but then somewhere down the line it got held up until after the deadline had passed. The majority disregards Allen’s contention in a single sentence:

With respect to Allen’s allegation that the circuit clerk caused the late filing of the notice of appeal, the claim is not supported with facts from which it could be determined that the clerk made some error that would relieve Allen of ...