Betts v. State

2014 Ark. 72

• Court: Supreme Court of Arkansas
• Decided: February 13, 2014
• Docket: CV-13-1096
• Status: Published

Opinion

Cite as 2014 Ark. 72

SUPREME COURT OF ARKANSAS No. CV-13-1096

Opinion Delivered February 13, 2014

PRO SE MOTION FOR BELATED ALBERT BETTS APPEAL OF ORDER AND MOTION PETITIONER FOR APPOINTMENT OF COUNSEL [LEE COUNTY CIRCUIT COURT, v. 39CV-13-88] STATE OF ARKANSAS AND RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION MOTION FOR BELATED APPEAL RESPONDENTS OF ORDER DENIED; MOTION FOR APPOINTMENT OF COUNSEL MOOT.

PER CURIAM

In 2013, petitioner Albert Betts filed a pro se petition for writ of habeas corpus in the

circuit court in Lee County where he was incarcerated.1 The circuit court denied the petition on

August 27, 2013. Petitioner did not timely file a notice of appeal from the order, and he now

seeks leave to proceed with a belated appeal. He also seeks appointment of counsel.

A petitioner has the right to appeal a ruling on a petition for postconviction relief, which

includes the denial of a petition for writ of habeas corpus. Wesley v. Harmon, 2010 Ark. 21 (per

curiam); McClain v. Norris, 2009 Ark. 428 (per curiam); see Scott v. State, 281 Ark. 436, 664 S.W.2d

475 (1984) (per curiam). If the petitioner fails to file a timely notice of appeal, a belated appeal

will not be allowed absent a showing by the petitioner of good cause for the failure to comply

1 As of the date of this opinion, appellant remains incarcerated at the prison facility in Lee County. Cite as 2014 Ark. 72

with proper procedure. Wesley, 2010 Ark. 21; Garner v. State, 293 Ark. 309, 737 S.W.2d 637

(1987) (per curiam).

This court has consistently held that the burden to conform to procedural rules applies

even where 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.

Nelson v. State, 2013 Ark. 316 (per curiam); Hale v. State, 2010 Ark. 17 (per curiam) (citing Daniels

v. State, 2009 Ark. 607 (per curiam)); see also Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986)

(per curiam); Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984) (per curiam); Thompson v. State,

280 Ark. 163, 655 S.W.2d 424 (1983) (per curiam). The pro se appellant receives no special

consideration on appeal. Nelson, 2013 Ark. 316.

Arkansas Rule of Appellate Procedure–Civil 4(a) (2013) requires that a notice of appeal

be filed within thirty days of the date an order is entered. Here, the final date to file a timely

notice of appeal was Thursday, September 26, 2013. As his sole ground to permit a belated

appeal, petitioner argues that his notice of appeal, which was file-marked by the circuit clerk on

September 27, 2013, should be considered timely filed because Monday, September 2, 2013, was

the Labor Day holiday and should not be counted when calculating the thirty-day period to file

the notice of appeal.

Computation of the time period for securing an appeal is done in accordance with Ark.

R. Civ. P. 6. Rule 6(a) provides the following:

In computing any period of time prescribed or allowed by these rules . . . the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, Sunday, legal holiday, or other day when the clerk’s office is closed, in which event the

2 Cite as 2014 Ark. 72

period runs until the end of the next day that the clerk’s office is open. When the period of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays, Sundays, or legal holidays shall be excluded in the computation. As used in this rule and Rule 77(c), “legal holiday” means those days designated as a holiday by the President or Congress of the United States or designated by the laws of this State.

Here, in accordance with the Rule, the thirty-day period to file a notice of appeal began on

August 27, 2013, and each calendar day should be included in calculating the thirty days to file

the notice, making the final day to file a timely notice of appeal Thursday, September 26, 2013.

See Whitmer v. Sullivent, 373 Ark. 327, 284 S.W.3d 6 (2008). The Rule does not require that a legal

holiday that occurred during that period be excluded in the calculation.

As petitioner’s only ground for the motion for belated appeal is without merit, he has not

established good cause for not meeting his burden of filing a timely notice of appeal. For that

reason, the motion to proceed with the appeal is denied. The motion for appointment of

counsel is moot.

Motion for belated appeal of order denied; motion for appointment of counsel moot.

Albert Betts, pro se petitioner.

No response.