Richard W. Green v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 5, 2002

RICHARD W. GREEN

Petitioner

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Respondent

02-914

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2002-466-5, HON. FRED DAVIS, III, J.]

MOTION TREATED AS MOTION FOR BELATED APPEAL AND DENIED

Richard W. Green, who is incarcerated in Jefferson County in the custody of the Arkansas Department of Correction by virtue of a judgment of conviction for murder in the first degree, filed a pro se petition for writ of habeas corpus in the Circuit Court of Jefferson County seeking release from custody. The petition was denied. Green did not file a notice of appeal within the thirty-day period allowed for filing a notice of appeal under Rule 4(a) of the Rules of Appellate Procedure-Civil.

When the record was tendered here, our clerk correctly declined to lodge it because of the late notice of appeal. Now before us is petitioner's motion for rule on clerk asking to be permitted to proceed with a belated appeal. As the notice of appeal was untimely, we treat the motion as a motion for belated appeal pursuant to Rule 2(a)(4) of the Rules of AppellateProcedure-Criminal.

Petitioner contends that he should be permitted to proceed with a belated appeal because the late filing of the notice of appeal was the fault of the trial judge's case coordinator to whom he mailed the notice of appeal. He contends that the case coordinator should have filed the notice with the circuit clerk inasmuch as it was received by her within thirty days of the date the order was entered.

The motion for belated appeal is denied. We first note there is no provision in the rules of civil procedure for a belated appeal in a civil matter. Nevertheless, even if the habeas proceeding could be considered a postconviction matter such as Criminal Procedure Rule 37.1, which is civil in nature but in which a belated appeal may be allowed, a petitioner has the responsibility of filing a timely notice of appeal within thirty days of the date the order was entered. 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 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 mailing a notice of appeal to a judge's office does not constitute a timely filing of a notice of appeal. Thompson, supra. It is not the responsibility of the judge, the circuit clerk, or anyone other than the appellant to perfect an appeal. See Sullivan

v. State, supra. As petitioner has not established that the clerk received the notice within thirty days of the order appealed from but did not file it and has stated no good cause for his failure to file a timely notice of appeal, the motion to proceed with a belated appeal is denied.

Motion treated as motion for belated appeal and denied.