Terry Lynn Huey v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-489

NOT DESIGNATED FOR PUBLICATION

TERRY LYNN HUEY

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered October 20, 2006

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR EXTENSION OF BRIEF TIME [CIRCUIT COURT OF WASHINGTON COUNTY, CR 2002-1249-1, HON. WILLIAM A. STOREY, JUDGE]

MOTION FOR APPOINTMENT OF COUNSEL DENIED; MOTION FOR EXTENSION OF BRIEF TIME GRANTED IN PART AND DENIED IN PART

PER CURIAM

Terry Lynn Huey was convicted by a jury of third-degree domestic battery (second offense), terroristic threatening, and aggravated assault and sentenced to 216 months' imprisonment in the Arkansas Department of Correction. The court of appeals affirmed the judgment in an unpublished opinion. Huey v. State, CACR 03-651 (Ark. App. Feb. 25, 2004). Huey then filed a timely petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied. Huey has lodged in this court an appeal from the order denying postconviction relief. Now before us are appellant Huey's motions for appointment of counsel and for extension of brief time.

Appointment of counsel for a hearing on a petition pursuant to Ark. R. Crim. P. 37.3(b) is discretionary, although counsel so appointed shall continue to represent a petitioner on appeal, if not relieved. The trial court did not appoint counsel to represent petitioner Huey for the postconviction relief hearing. Postconviction matters, such as petitions pursuant to Criminal Procedure Rule 37.1, are considered civil in nature with respect to the right to counsel; there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986)(per curiam).

This court has held, however, that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989)(per curiam). Appellant makes no statement as to the merit of the appeal. We cannot, therefore, find that he has demonstrated that counsel should be appointed for this appeal. Accordingly, the motion for appointment of counsel is denied.

Appellant also seeks an extension of time to file appellant's brief. We grant that motion, although not for the forty days' extension requested. The appellant's brief is due here no later than thirty days from the date of this opinion.

Motion for appointment of counsel denied; motion for extension of brief time granted in part and denied in part.