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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 DAngelo 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
courts 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.
Allens
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 petitioners failure to abide by procedural rules, the
merit of the underlying petition is not at issue. With
respect to Allens 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 Allens 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 Allens contention in a single sentence:
With respect to Allens 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
...