Justia.com Opinion Summary: Petitioner Greg Hogue was convicted of capital murder. Petitioner subsequently filed a pro se petition for forensics testing, seeking to challenge his conviction through a writ of habeas corpus. The lower court denied the petition. Petitioner subsequently filed a notice of appeal. The Supreme Court clerk declined to lodge the appeal because its tender was untimely. Before the Court was Petitioner's motion seeking to proceed with the appeal and requesting that the Court permit him to lodge the record belatedly. The Court denied the motion, holding that Petitioner did not show good cause for his failure to tender the record within the ninety-day period required by Ark. R. App. P.-Crim 4(b).
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Cite as 2012 Ark. 171
SUPREME COURT OF ARKANSAS
No.
CR 12-90
Opinion Delivered
GREG HOGUE
PETITIONER
v.
April 19, 2012
PRO SE MOTION FOR RULE ON
CLERK TO LODGE RECORD
BELATEDLY [PULASKI COUNTY
CIRCUIT COURT, CR 94-904]
STATE OF ARKANSAS
RESPONDENT
MOTION DENIED.
PER CURIAM
On August 15, 2011, petitioner Greg Hogue filed a timely notice of appeal as to an order
that dismissed his pro se petition for forensics testing under Act 1780 of 2001 Acts of Arkansas,
as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated sections 16-112-201
to -208 (Repl. 2006). The petition dismissed by the circuit court sought to challenge petitioner’s
capital-murder conviction through a writ of habeas corpus. Petitioner tendered the record for
the appeal to this court on November 16, 2011, and our clerk declined to lodge the appeal
because its tender was untimely. Petitioner now brings a motion in which he seeks to proceed
with the appeal, and he requests that this court permit him to lodge the record belatedly. We
deny the motion.
Our clerk rejected petitioner’s tender of the record because it was submitted ninety-three
days after the notice of appeal was filed. Arkansas Rule of Appellate Procedure–Criminal 4
(2011) requires that the record on appeal shall be filed with the clerk of the appellate court
within ninety days from the filing of the notice of appeal, unless the time to lodge the record is
Cite as 2012 Ark. 171
extended by the circuit court in accordance with the rule. Ark. R. App. P.–Crim. 4 (b). If the
transcript of the trial record was not filed in the time prescribed, then a criminal defendant may
file a motion for rule on clerk under Arkansas Rule of Appellate Procedure–Criminal 2(e). See
Murry v. State, 2010 Ark. 367 (per curiam).
A petitioner has the right to appeal a ruling on a petition for postconviction relief. Brewer
v. State, 2010 Ark. 59 (per curiam). Along with that right, however, goes the responsibility to
comply with our rules of procedure. Id. Where the transcript was not timely filed, this court
may only act upon and decide those cases where the movant shows good cause for the omission.
Id.
Petitioner asserts in his motion that the trial court should have provided a ruling on his
motion for an extension of time in which to lodge the record and that petitioner had no means
to compel the circuit court to act promptly on his motion. He avers that he acted diligently to
obtain an extension of time in which to lodge the record and that he should not be penalized
for failing to obtain an extension of time.
Arkansas Rule of Appellate Procedure–Criminal 4(c) governs extensions of time to file
the record in criminal cases. Under Rule 4(c), the circuit court may grant the motion extending
time to lodge the record if all parties consent and if the extension is necessary for the court
reporter to include stenographically reported material in the record. Ark. R. App. P.—Crim. 4
(c)(1); see also Taylor v. State, 2010 Ark. 324 (per curiam). In this case, the Act 1780 petition was
dismissed without a hearing. Because there was no stenographically reported material that was
required to be included in the record, the circuit court would have been without authority to
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Cite as 2012 Ark. 171
grant an extension of time in which to lodge the record on appeal.
All litigants, including those who proceed pro se, must bear responsibility for conforming
to the rules of procedure or demonstrating a good cause for not doing so. Burgess v. State, 2010
Ark. 34 (per curiam). Indigent, pro se appellants routinely pursue appeals to this court and
comply with our rules concerning the lodging of the record. Young v. State, 2009 Ark. 556 (per
curiam). The fact that a petitioner is proceeding pro se does not in itself constitute good cause
for the failure to conform to the prevailing procedural rules. Ester v. State, 2009 Ark. 442 (per
curiam).
Petitioner has the burden to make a showing of good cause for his failure to conform to
the prevailing procedural rules. Id. The record and petitioner’s motion do not demonstrate that
petitioner would have been entitled to an extension of time, even if the court had provided a
more prompt ruling on his motion. Although petitioner states that he inquired diligently on the
status of his appeal, he does not provide any reason—aside from the circuit clerk’s failure to
act—why the record was not tendered within the ninety-day time limit. This court has
previously declined to grant a motion for rule on clerk where the petitioner alleged that the
circuit clerk failed to send that petitioner either an order granting an extension of time or the
appeal record before the time to lodge the record had expired. Marshall v. State, 2009 Ark. 420
(per curiam). The facts that petitioner alleges in this case demonstrate no better basis for his
failure to comply with the time limitations of our rules. Petitioner has not shown good cause
for his failure to tender the record within the ninety-day period required by Rule 4(b).
Motion denied.
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