Ray v. State

2015 Ark. 489

• Court: Supreme Court of Arkansas
• Decided: December 17, 2015
• Docket: CR-15-811
• Status: Published

Opinion

Cite as 2015 Ark. 489

No. CR-15-811

Opinion Delivered December 17, 2015 GIFFORD RAY APPELLANT PRO SE PETITIONS FOR WRIT OF V. CERTIORARI AND MOTIONS FOR APPOINTMENT OF COUNSEL AND EXTENSION OF BRIEF TIME STATE OF ARKANSAS [HOT SPRING COUNTY CIRCUIT APPELLEE COURT, NO. 30CR-90-30]

HONORABLE CHRIS E WILLIAMS, JUDGE

APPEAL DISMISSED; PETITIONS AND MOTIONS MOOT.

PER CURIAM

In 1990, appellant Gifford Ray was convicted of first-degree murder and sentenced to

life in prison. We affirmed. Ray v. State, 304 Ark. 489, 803 S.W.2d 894 (1991). The mandate

from that appeal was issued on June 21, 1991. In 1993, Ray filed in the trial court a petition

for postconviction relief under Arkansas Rule of Criminal Procedure 36.4 (1990). The

petition was dismissed on the ground that it was not timely filed. We affirmed the order.

Ray v. State, CR-97-915 (Ark. Sept. 24, 1998) (unpublished per curiam).

At the time that Ray was convicted, Rule 36.4 was the postconviction rule in effect.1

Rule 36.4 required the trial court to advise the defendant at sentencing that he was entitled to

1 At the time the conviction in Ray’s case was entered, Arkansas Rule of Criminal Procedure 37.1 had been abolished, and this state’s postconviction remedy was encompassed in Rule 36.4. This rule was later abolished and Rule 37.1 was reinstated in a revised form on January 1, 1991, as our postconviction remedy. In re Rule 37, 303 Ark. App’x 746, 797 S.W.2d 458 (1990) (per curiam). Cite as 2015 Ark. 489

file within thirty days a motion for postconviction relief if he was dissatisfied with his

attorney’s representation. Ray did not file such a motion, but apparently attempted to

proceed under the version of Arkansas Rule of Criminal Procedure 37.1 (1991) that was in

effect before the abolishment of Rule 37 and its replacement with Rule 36.4. Under the

former version of Rule 37, a defendant whose conviction had been affirmed on appeal was

required to file a petition in the Supreme Court for permission to proceed under Rule 37 in

the trial court. The limitations period for taking such action was three years.

On appeal from the denial of the petition, he argued that the petition was not

untimely because he was entitled to the three-year limitations period under the former

version of Rule 37. The State, in its response, contended that Ray’s only possible avenues

for postconviction relief were provided by Rule 36.4 and the reinstated version of Rule 37.1.

The State argued that Ray could not proceed under either remedy in a timely manner. We

held that the State’s position was correct.

We have held that a defendant who was convicted when Rule 36.4 was in effect can

file a belated petition under Rule 36.4 when he demonstrates that he was not advised of his

right to proceed under the rule. Cherry v. State, 323 Ark. 733, 918 S.W.2d 125 (1996). The

other circumstance in which a belated petition can be filed is when a federal district court

issues a conditional writ of habeas corpus. Raglin v. State, 328 Ark. 750, 945 S.W.2d 937

(1997). A defendant who was convicted while Rule 36.4 was in effect, but whose conviction

was affirmed after Rule 37 was reinstated, was permitted sixty days from the date of the

mandate in which to file a petition. Pogue v. State, 316 Ark. 428, 872 S.W.2d 387 (1994). Ray Cite as 2015 Ark. 489

was convicted when Rule 36.4 was in effect. His conviction was affirmed after the

reinstatement of Rule 37. Ray did not demonstrate that he was not advised of his right to

proceed under Rule 36.4, nor did he file his petition within sixty days of the date of the

appellate mandate. Ark. R. Crim. P. 37.2(b). Accordingly, this court held that Ray was not

entitled to postconviction relief under either rule.

On April 13, 2015, Ray filed in the trial court a “motion for a new trial or reduction

of sentence under a belated Rule 36.4 motion for a new trial” in which he again contended

that he was entitled to proceed for postconviction relief under Rule 36.4. The motion was

denied, and Ray has lodged an appeal in this court. Now before us are Ray’s petitions for

writ of certiorari to bring up a more extensive record and his motions for appointment of

counsel and an extension of brief time.

Because it is clear that Ray cannot prevail on appeal, the appeal is dismissed, and the

petitions and motions are moot. An appeal from an order that denied a petition for

postconviction relief will not be allowed to proceed when it is clear that the appellant could

not prevail. Justus v. State, 2012 Ark. 91.

This court held in 1998 that Ray’s petition filed in 1993, whether considered under

Rule 36.4 or Rule 37.1 was not timely filed. As such, his motion filed in 2015 was also

untimely. Ray did not make a showing in his 2015 motion that there was a ground to permit

a belated 36.4 petition to be filed. Accordingly, Ray could not prevail on appeal from the

order that denied the 2015 motion.