James Randolph Mathis v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MAY 15, 2003

JAMES RANDOLPH MATHIS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-236

PRO SE MOTION FOR RULE ON CLERK TO PROCEED WITH APPEAL OF POSTCONVICTION ORDER [CIRCUIT COURT OF GREENE COUNTY, NO. CR 97-83, HON. SAMUEL TURNER, JUDGE]

MOTION DENIED

In 1998, James Randolph Mathis was found guilty by a jury of rape and sentenced to 120 months' imprisonment. The court of appeals affirmed. Mathis v. State, CACR 98-899 (Ark. App. February 24, 1999). Mathis subsequently filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 seeking to have the judgment vacated. On November 22, 1999, the trial court denied the relief sought, and petitioner filed a timely pro se notice of appeal on December 9, 1999.1

On February 7, 2003, more than two years after the notice of appeal was filed, petitioner tendered the record to this court. Our clerk correctly declined to lodge it because it was not tendered here within ninety days of the date of the notice of appeal as required by Ark. R. App.P.-Civil 5(a). Now before us is petitioner's motion for rule on clerk seeking to lodge the record belatedly. As his sole ground for the request to lodge the record belatedly, petitioner contends that the circuit clerk is at fault for failing to lodge the record in a timely manner.

A petitioner has the right to appeal a ruling on a petition for postconviction relief. Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). With that right, however, goes the responsibility to file a timely notice of appeal and tender the record here within the time limits set by the rules of procedure. If a petitioner fails to tender the record in a timely fashion, the burden is on the petitioner to make a showing of good cause for the failure to comply with proper procedure. See Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). The fact that a petitioner is proceeding pro se in itself does not constitute good cause for the failure to conform to the prevailing rules of procedure. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984); Thompson v. State, 280 Ark. 163, 655 S.W.2d 424 (1983); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990).

This court has specifically held that it is not the responsibility of the circuit clerk, circuit court, or anyone other than the appellant to perfect an appeal. See Sullivan v. State, supra; Bragg v. State, supra.

It was thus the petitioner's burden to tender the record here within the time allowed by Rule 5(a). Petitioner failed to perfect the appeal and has not established that there was good cause for his failure to do so. Accordingly, the motion to proceed with the appeal is denied.

Motion denied.

Corbin, J., not participating.

1 The attorney who represented petitioner Mathis in the Rule 37.1 proceeding was relieved as counsel in the order and thus had no obligation to represent him on appeal from the order. See Miller v. State, 299 Ark. 548, 775 S.W.2d 79 (1989)