Leavy v. Norris

Calvin LEAVY v. Larry NORRIS, Director

CR 96-268                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 6, 1996


1.   Criminal procedure -- petitioner has right to appeal adverse
     ruling on petition for postconviction relief -- even pro se
     petitioner must file timely notice of appeal. -- A petitioner
     has the right to appeal an adverse ruling on a petition for
     postconviction relief; with that right, however, goes the
     responsibility to file a timely notice of appeal within thirty
     days of the date the order was entered in accordance with Rule
     4 (a) of the Rules of Appellate Procedure; 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 with proper procedure; the
     fact that a petitioner is proceeding pro se does not in itself
     constitute good cause for the failure to conform to the
     prevailing rules of procedure. 

2.   Appeal & error -- bare allegation that notice of appeal was
     mailed not good cause to grant belated appeal.-- The litigant
     who claims to have mailed an item has the burden of proving
     that he mailed it, and the bare allegation that a notice of
     appeal was mailed is not good cause to grant a belated appeal;
     if the allegation that a notice was mailed were sufficient,
     there would be no point in setting up rules of procedure
     because the procedural requirements could be circumvented by
     a simple claim that the petitioner's failure to comply with
     the rules was caused by the post office.

3.   Criminal procedure -- petitioner failed to prove petition
     mailed in timely manner -- motion for belated appeal denied. -
     - Where petitioner presented nothing to show that he mailed
     the notice of appeal in a timely manner, failed to establish
     that the clerk received the notice within thirty days of the
     order appealed from but did not file it, and stated no good
     cause for his failure to file a timely notice of appeal, his
     motion for belated appeal was denied.


     Pro Se Motion for Belated Appeal denied.
     Appellant, pro se.
     No response.

     Per Curiam.
     May 6, 1996   *ADVREP6*






CALVIN J. LEAVY
     Petitioner


v.


LARRY NORRIS, DIRECTOR
     Respondent


CR 96-268



PRO SE MOTION FOR BELATED
APPEAL (CIRCUIT COURT OF
JEFFERSON COUNTY, NO. CR 95-68-
3), HON. FRED D. DAVIS, JUDGE



MOTION DENIED




                           Per Curiam.


     Calvin J. Leavy was found guilty by a jury in 1992 of 

participating in a continuing criminal enterprise, public servant 

bribery, delivery of cocaine, and use of a communication facility
in furtherance of a drug felony.  He was sentenced respectively to
terms of imprisonment of life, six years, twenty-five years, and
ten years.  We affirmed.  Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993).
     In 1995, Mr. Leavy filed a pro se petition for writ of habeas
corpus in the circuit court in the county in which he was
incarcerated.  An order was entered denying the petition on
September 19, 1995.  An appeal of the order was not perfected, and
petitioner Leavy now seeks to proceed with a belated appeal.  
     Petitioner contends that he forwarded a notice of appeal to
the circuit clerk on September 26, 1995, which was not filed by the
clerk.  He argues that it can be determined from an affidavit
attached to the motion for belated appeal that he filed the notice,
but the affidavit is merely petitioner's notarized statement that
he had the notice of appeal notarized on September 26, 1995, and
mailed it on September 27, 1995.  There is nothing in the record or
the motion to show that the circuit clerk received a notice of
appeal from the petitioner within the thirty days allowed for
filing a timely notice of appeal pursuant to Rule 4 (a) of the
Rules of Appellate Procedure.  We take judicial notice that
petitioner forwarded a copy of a notice of appeal to this court
which pertains to the September 19, 1995, order, but the filing
date on the notice was November 28, 1995, making it untimely.  
     A petitioner has the right to appeal an adverse ruling on a
petition for post-conviction relief.  See 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 within thirty days
of the date the order was entered in accordance with Rule 4 (a). 
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 with proper
procedure.  Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). 
The fact that a petitioner is proceeding pro se does not in itself
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).
     This court has specifically held that the litigant who claims
to have mailed an item has the burden of proving that he mailed it,
and the bare allegation that a notice of appeal was mailed is not
good cause to grant a belated appeal.  Skaggs v. State, 287 Ark.
259, 697 S.W.2d 913 (1985).  As we said in Skaggs,
          If it [the allegation that a notice was mailed]
          were [sufficient], there would be no point in setting up
          rules of procedure since the procedural requirements
          could be circumvented by a simple claim that the
          petitioner's failure to comply with the rules was
          caused by the post office.

The petitioner here appears to blame the circuit clerk rather than 

the post office for the fact that a notice of appeal was not filed 

in a timely manner, but the fact remains that he has presented 

nothing to show that he mailed it in a timely manner.  It must be
assumed that if the petitioner had mailed the notice to the clerk,
it would have been delivered.  As petitioner has not established
that the clerk received the notice within thirty days of the order
appealed from, did not file it, and has stated no good cause for
his failure to file a timely notice of appeal, the motion for
belated appeal is denied.
     Motion denied.