Johnny Paul Dodson v. Larry Norris, Director, Arkansas Department of Correction
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SUPREME COURT OF ARKANSAS
No.
07-1179
Opinion Delivered October 30, 2008
JOHNNY PAUL DODSON,
APPELLANT;
VS.
LARRY NORRIS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION,
APPELLEE;
UPON CERTIFICATION FROM THE
UNITED STATES DISTRICT COURT,
EASTERN DISTRICT OF ARKANSAS,
CASE NO. 5:07CV00080 WRW; HON.
WILLIAM R. WILSON, DISTRICT JUDGE;
CERTIFIED QUESTION ANSWERED.
DONALD L. CORBIN, Associate Justice
CERTIFICATION
OF Q U ESTION OF LAW— M OTIONS FOR BELATED APPEAL
—
M OTION FOR BELATED
APPEAL OF A CIRCUIT COURT ’S ORDER DENYING RULE 37 RELIEF IS NOT PART OF THE ORDINARY
APPELLATE REVIEW PROCESS. —
The supreme court, through Ark. R. App. P.–Crim. 2(e), allows
a party to seek a belated appeal where either error or good cause prevents an appeal from moving
forward in the ordinary appellate review procedure; therefore, a motion for belated appeal of a
circuit court’s order denying relief under Ark. R. Crim. P. 37 is not part of the ordinary appellate
review process.
John Wesley Hall, Jr., for appellant.
Dustin McDaniel, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
This is an original action, whereby this court accepted certification of a question of law
submitted by the United States District Court of Arkansas, Eastern District, pursuant to
Arkansas Supreme Court Rule 6-8.
(2007) (per curiam).
See Dodson v. Norris, 371 Ark. 661, 269 S.W.3d 350
The question of law to be answered by this court is: Whether a motion
for a belated appeal, as provided for in Arkansas Criminal Appellate Rule 2(e), of a state circuit
court’s order denying relief under Rule 37 of the Arkansas Rules of Criminal Procedure is a
part of the ordinary appellate review procedure1 under Arkansas law.
We conclude that a
motion for belated appeal is not part of the ordinary appellate review procedure under our law.
According to the District Court’s order certifying this question to us, Dodson was
convicted by a Garland County jury of possession of methamphetamine with intent to deliver,
possession of marijuana, and was sentenced as a habitual offender to life imprisonment. This
court affirmed his conviction and sentence in Dodson v. State, 358 Ark. 372, 191 S.W.3d 511
(2004), and later denied rehearing in the matter.2
During the pendency of his direct appeal,
Dodson filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of
Criminal Procedure.
January 7, 2005.
He then filed an amended Rule 37 petition that the trial court denied on
Dodson filed a notice of appeal from the January 7 order on February 10,
2005, and because that notice was untimely, the clerk of this court refused to accept the
record.
Thereafter, Dodson filed a motion for belated appeal on May 17, 2005, arguing that
this court should adopt the “prison mailbox rule.”
This court denied the motion on June 30,
2005, and Dodson’s subsequent application for certiorari to the United States Supreme Court
was likewise denied. See Dodson v. Arkansas, 546 U.S. 915 (2005).
1
The term “ordinary appellat e review p rocedure” as set forth in the certified question was utilized by the United
States Supreme Court in its analysis of the doctrine of exhaustion of remedies as set forth in O’Sulliv an v. Boerckel, 526
U.S. 838 (1999).
2
Dodson’s original ap p eal of his conviction was dismissed but later reinstated in response to a pro se motion
filed by Dodson. See Dodson v. State, 356 Ark. 118, 146 S.W.3d 893 (2004) (per curiam).
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Dodson filed a petition for a writ of habeas corpus in the Jefferson County Circuit
Court on November 21, 2005,3 challenging the Garland County Circuit Court’s jurisdiction
over him, as well as challenging the facial validity of his judgment and commitment order.
The
circuit court entered an order on January 13, 2006, denying the petition and that decision was
affirmed by this court on January 11, 2007.
Dodson filed a petition for writ of habeas corpus in District Court on April 18, 2007.
Therein, he averred that he had exhausted all his state remedies. He then alleged that he was
entitled to the writ because he (1) was denied his right to a speedy trial; (2) was not competent
to stand trial; and (3) lacked effective assistance of counsel.
Appellee Larry Norris, Director
of the Arkansas Department of Correction, filed a motion to dismiss on July 27, 2007, arguing
that each of Dodson’s claims for relief were time barred pursuant to 28 U.S.C. § 2244(d)(1)
(2000), because Dodson failed to file his federal habeas petition within one year of the date
his conviction became final and his state habeas proceeding did not toll sufficient time under
§ 2244(d)(2) to avoid this time limitation.
The issue in Dodson’s federal case that hinges on our answer to the present question
is whether the time that will be tolled by the state postconviction proceeding that he filed
pursuant to Rule 37 should include the time during which he petitioned for a belated appeal of
that proceeding. Dodson argues that belated appeals are a part of the ordinary appellate review
procedure.
Citing to this court’s decision in McDonald v. State, 356 Ark. 106, 146 S.W.3d
3
D ods on originally filed a petition for a writ of habeas corpus in federal court but then moved to voluntarily
dismiss the action so he could file it in state court.
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883 (2004), Dodson states that where the court has granted the right to appeal, the appellate
process must likewise provide a mechanism for the failures of the system or appellate counsel
to protect that right to appeal. Moreover, in support of his contention that belated appeals are
part of the ordinary appellate process, Dodson avers that this court regularly considers belated
appeals, including belated appeals in Rule 37 proceedings. Thus, Dodson argued to the federal
court that he was entitled to statutory tolling for the time that his motion for belated appeal was
pending before this court.
Citing to Arkansas Rule of Appellate Procedure–Criminal 2(a)(4), the State admits that
there is no question that a typical postconviction appellate review is part of the ordinary
procedure for obtaining postconviction relief.
The State counters, however, that a motion for
belated appeal is not a venue for raising claims for postconviction relief that may later arise
in a federal habeas petition and, consequently, is not itself a stage of the appellate process. The
State concludes that in the absence of a timely filed notice of appeal, the “ordinary appellate
review procedure” does not begin.
In analyzing the question before us, it is helpful to briefly review the applicable federal
law dealing with habeas petitions.
All federal habeas petitions filed after April 24, 1996, are
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified
at 28 U.S.C. § 2254 (2000). Under the AEDPA, there is a one-year statute of limitations on
petitions for writs of habeas corpus filed under § 2254.
This limitations period, found at
§ 2244(d)(1), states in pertinent part:
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(d)(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
....
(2) The time during which a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any period of limitation under
this subsection.
28 U.S.C. § 2244(d)(1), (2).
For a party to pursue federal habeas relief, all state remedies must first be exhausted.
See O’Sullivan, 526 U.S. 838. The purpose of this rule is to allow state courts a full and fair
opportunity to resolve claims before they are presented to the federal courts. Id. In discussing
the exhaustion requirement, the Court elaborated and stated that a state prisoner must give the
state courts the opportunity to act on claims before they are presented in a federal habeas
petition.
Id.
The O’Sullivan Court further recognized that the exhaustion doctrine “raises a
recurring question: What state remedies must a habeas petitioner invoke to satisfy the federal
exhaustion requirement?”
(1989)).
Id. at 842-43 (citing Castille v. Peoples, 489 U.S. 346, 349-50
According to the Court, a state prisoner must give a state court “one full opportunity
to resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process.” 526 U.S. at 845.
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We now turn to the question at hand and begin our analysis by reviewing our treatment
of belated appeals. Rule 2(e) of the Arkansas Rules of Appellate Procedure– Criminal governs
belated appeals and provides:
Failure of the appellant to take any further steps to secure the review of the
appealed conviction shall not affect the validity of the appeal but shall be ground
only for such action as the Supreme Court deems appropriate, which may
include dismissal of the appeal. The Supreme Court may act upon and decide a
case in which the notice of appeal was not given or the transcript of the trial
record was not filed in the time prescribed, when a good reason for the omission
is shown by affidavit.
However, no motion for belated appeal shall be
entertained by the Supreme Court unless application has been made to the
Supreme Court within eighteen (18) months of the date of entry of judgment or
entry of the order denying postconviction relief from which the appeal is taken.
If no judgment of conviction was entered of record within ten (10) days of the
date sentence was pronounced, application for belated appeal must be made
within eighteen (18) months of the date sentence was pronounced.
In analyzing the foregoing rule, this court in McDonald, 356 Ark. 106, 146 S.W.3d 883, noted
that it was responsible for setting the terms for obtaining relief when a party fails to perfect
an appeal. Under Rule 2(e), an attorney or a party has the right to argue that there is good cause
for failing to timely perfect an appeal or to concede error.
whether or not to allow a belated appeal to go forward.
This court then has the discretion
Simply stated, a motion for belated
appeal is a remedy that is available to a party in a situation where there has been a failure to
follow the ordinary appellate review procedure.
Cf. Rumph v. State, 746 So. 2d 1249 (Fla.
Dist. Ct. App. 1999) (noting that a belated appeal may be allowed where exceptional
circumstances render the ordinary appellate process unavailable).
Moreover, those steps that are part of the ordinary appellate review procedure do not
require that an attorney or party first seek this court’s leave to proceed.
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Finally, where an
07-1179
attorney seeks to proceed with a belated appeal after admitting error, this court refers that
attorney to our Committee on Professional Conduct.
S.W.3d 883.
See McDonald, 356 Ark. 106, 146
We do this because the attorney has failed to comply with the ordinary appellate
review procedure. In sum, this court, through Rule 2(e), allows a party to seek a belated appeal
where either error or good cause prevents an appeal from moving forward in the ordinary
appellate review procedure.
Therefore, a motion for belated appeal is not part of the ordinary
appellate review process.
Certified question answered.
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07-1179
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