Russell Berger v. Larry Norris

ARKANSAS SUPREME COURT

No. 05-1205

NOT DESIGNATED FOR PUBLICATION

RUSSELL BERGER

Petitioner

v.

LARRY NORRIS

Respondent

Opinion Delivered December 15, 2005

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF LINCOLN COUNTY, LCV 2005-40-3-5, HON. ROBERT HOLDEN WYATT, JR., JUDGE]

MOTION DENIED

PER CURIAM

Russell Berger was convicted on two counts of rape and was sentenced to life imprisonment on each count, to be served consecutively. We affirmed. Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2001).

Berger then filed a petition for postconviction relief pursuant to Rule 37.1 in the trial court that was denied. We affirmed. Berger v. State, CR 02-350 (Ark. Feb. 12, 2004) (per curiam). Subsequently, Berger filed a writ of habeas corpus in the trial court that was denied on May 20, 2005. Berger filed a pro se notice of appeal on June 9, 2005, making the record due here on September 7, 2005. The record was not tendered to this court until September 28, 2005. Now before us is Berger's motion for rule on clerk. The motion is necessary because Berger failed to tender the record within ninety days of the date of the notice of appeal as required by Ark. R. App.-Civ. 5(a).

On September 6, 2005, the trial court issued an order extending petitioner's ninety-day deadline to file the record on appeal. Pursuant to Ark. R. App.-Civ. 5(b)(1) the trial court mayextend the filing period for the record on appeal if "any party has designated stenographically reported material for inclusion in the record on appeal. . . ." The trial court's order extending the deadline did not reference a problem with procuring stenographically reported material, and the record does not reflect that a hearing was held on the habeas petition, thus the order was ineffective to extend petitioner's deadline.

Arkansas Rule of Appellate Procedure-Civil 7(b) provides that it is the sole responsibility of the appellant to transmit the certified record to this court. 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). Petitioner here accepts responsibility for failing to lodge the record, but he has stated no good cause for his failure to comply with the proper procedure. Motion denied.