James M. Marlin v. Larry Norris

ARKANSAS SUPREME COURT

No. 04-1191

NOT DESIGNATED FOR PUBLICATION

JAMES M. MARLIN

Petitioner

v.

LARRY NORRIS

Respondent

Opinion Delivered December 16, 2004

PRO SE MOTION FOR RULE FOR ON CLERK [CIRCUIT COURT OF LEE COUNTY, CV 2003-145]

MOTION DISMISSED

PER CURIAM

James M. Marlin, who is in the custody of the Arkansas Department of Correction and housed in a facility in Lee County, tendered to this court a pro se motion seeking to proceed with an appeal of an order entered in the Circuit Court of Lee County that denied his petition for writ of habeas corpus. The motion was necessary because Marlin failed to tender the record on appeal to this court within ninety days of the date of the notice of appeal as required by Ark. R. App.P.-Civ.5(a).

Marlin did not tender with the motion the certified partial record necessary to file such a pleading in this court. He now asks that our clerk be directed to file the motion without the certified partial record.

Petitioner contends that he should be permitted to file the motion to proceed with the appeal without a certified record because: (1) the habeas petition had merit; (2) neither the circuit clerk nor the circuit judge would provide him with the record to perfect the appeal from the order denying the habeas petition; (3) he was indigent and could not pay for the appeal record; (4) he has provided filemarked, but not certified, copies of the necessary documents; and (5) a manifest miscarriage of justice will occur if he is not allowed to appeal from the order denying the habeas petition.

Arkansas Rules of Appellate Procedure-Civil 7(a) provides that the clerk of the circuit court shall certify that a record tendered to this court is a true and correct copy of the record. Rule 7(b) provides that it is the responsibility of the appellant to transmit the certified record to this court. Petitioner here tendered a motion without this certified record and asks that this court simply assume jurisdiction of the matter without the required record. Without a certified record, however, we are left to rely on petitioner's statements and copies of documents that may or may not be true and accurate copies of the material filed in the circuit court as a foundation for assuming jurisdiction. This court does not proceed without a certified record where one is clearly required, and petitioner has not demonstrated that there is any good cause to make an exception in his case.

Motion dismissed.