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. 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, 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. 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. 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.
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
responsibility for having not filed a timely notice of
appeal.
(Maj. Opinion, p. 3). I disagree entirely with the
majority's suggestion that Allen's claim "is not
supported with facts from which it could be determined . . .
." The requisite facts are apparent on the face of the
record, and Allen's request for a belated appeal should
be granted.
The
order from which Allen seeks to appeal was filed June 19,
2018. Pursuant to Ark. R. App. P. -Civ. 4, Allen then had
thirty days to file his notice of appeal. His notice of
appeal was notarized with his signature on July 11, 2018.
This left more than a week before the deadline for
Allen's notice of appeal to be mailed from the East
Arkansas Regional Unit to the Lee County Courthouse in
Marianna for filing. By a generous estimate, the distance
between these two places is no more than fifteen miles.
However, the circuit clerk did not file Allen's notice of
appeal until August 2, 2018, more than three weeks after
Allen had it notarized, and approximately two weeks after the
deadline had passed.
Typically,
in postconviction cases, the circuit clerk includes in the
record the envelope used to mail documents from the prison to
the courthouse for filing to maintain contemporaneous
indication of when filings are sent and received. In this
case, the envelope used to carry Allen's notice of appeal
from the prison to the courthouse is missing from the record,
and its absence is suggestive. Because this issue is
dispositive, the omission supports a presumption that the
missing envelope would have been favorable to Allen. See
Watts v. State, 222 Ark. 427, 431, 261 S.W.2d 402, 404
(1953) ("The rule, even in criminal cases, is that, if a
party has it peculiarly within his power to produce witnesses
whose testimony would elucidate the transaction, the fact
that he does not do it creates the presumption that the
testimony, if produced, would be unfavorable.") (quoting
Graves v. United States, 150 U.S. 118, 121 (1893)).
Moreover, I note that the record also contains a request for
certified copies that Allen sent from the prison to be filed
at the courthouse. Allen got his request for certified copies
notarized on January 9, 2019, and that document was filed at
the courthouse just a few days later on January 14. Overall,
there is simply no reasonable explanation as to how it could
have taken approximately three weeks for Allen's notice
of appeal to be mailed from the prison to the courthouse, and
there is certainly no indication that this delay was in any
way attributable to Allen. The application of the presumption
establishes good cause for a belated appeal.
This
practice violates Allen's right of access to the courts.
Instead of glossing over these shenanigans, this court should
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