Kemp v. State
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Cite as 2009 Ark. 631
SUPREME COURT OF ARKANSAS
No.
CR09-77
Opinion Delivered December
TIMOTHY WAYNE KEMP,
APPELLANT,
VS.
STATE OF ARKANSAS,
17, 2009
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
NO. CR-93-2903,
HON. MARION A. HUMPHREY,
JUDGE,
APPELLEE,
DISMISSED WITHOUT PREJUDICE.
JIM GUNTER, Associate Justice
Appellant appeals the circuit court’s order denying his motions for leave to file an
overlength Rule 37 petition and for leave to file an amended petition. The circuit court’s
order also noted that the motions had been deemed denied pursuant to Ark. R. Crim P.
33.3(c). On appeal, appellant asserts that Rule 33.3(c) does not apply to Rule 37 proceedings
and that his motions should have been granted. The State argues that, because this court’s
mandate affirming the denial of appellant’s first Rule 37 petition has not been recalled, the
circuit court never had jurisdiction, and the appeal should be dismissed. We agree with the
State and dismiss the appeal for lack of jurisdiction.
Appellant was convicted of four counts of capital murder and sentenced to death on
each count. This court affirmed his convictions and one of the death sentences, but remanded
for resentencing on the remaining three. Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996).
Cite as 2009 Ark. 631
After resentencing, this court affirmed the three new death sentences that were imposed.
Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998). Appellant then filed a petition for
postconviction relief under Rule 37 of the Arkansas Rules of Criminal Procedure, which was
denied by the circuit court; however, on appeal, this court remanded for findings of fact and
conclusions of law. Kemp v. State, 347 Ark. 52, 60 S.W.3d 404 (2001). After an amended
order was filed and the remand returned, this court affirmed the denial of postconviction
relief. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002).
Appellant, represented by the Federal Public Defender’s Office, then proceeded to seek
federal habeas corpus relief in the United States District Court for the Eastern District of
Arkansas. In his petition for a writ of habeas corpus, filed February 14, 2003, appellant alleged
a series of errors that his previous attorney had failed to discover and present in his Rule 37
proceeding. On November 29, 2004, appellant filed a motion to stay and hold in abeyance
the federal proceedings pending his exhaustion of state remedies. On January 12, 2005, this
motion was granted.
On April 15, 2008, appellant filed in the Pulaski County Circuit Court a Rule 37
petition for postconviction relief, which was 315 pages in length; a motion for leave to file
an overlength petition, as Ark. R. Crim. P. 37.1(b) limits petitions for Rule 37 relief to ten
pages in length; and a memorandum of law regarding the timeliness of his petition. Also on
April 15, 2008, appellant’s federal public defenders filed with this court an application for
permission to be appointed as counsel on appellant’s behalf and represent him in the circuit
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court. On April 24, 2008, appellant filed an amended Rule 37 petition as well as a motion for
leave to file an amended petition. No response to any of the motions was filed by the State.
On May 8, 2008, this court granted counsels’ application for permission to be
appointed as counsel on appellant’s behalf. On September 30, 2008, the circuit court entered
an order ruling that the motion to file an overlength petition, the memorandum of law, and
the motion for leave to file an amended petition had been deemed denied under Ark. R.
Crim. P. 33(c). In addition, the court specifically denied the pleadings by entry of the order.
Appellant then filed a notice of appeal from this order on October 29, 2008.
On appeal, appellant asserts that Rule 33.3(c) does not apply to Rule 37 proceedings,
therefore his motions could not be deemed denied, and that the circuit court erred in denying
the motions. While appellant’s brief discusses the merits of his arguments regarding the denial
of his motions, the State raises a jurisdictional issue in its brief, and, as jurisdiction is a
threshold issue, we shall consider that issue first. The State asserts that, because appellant has
never requested that this court recall the mandate affirming the denial of appellant’s first Rule
37 petition, the circuit court was without authority to entertain a second Rule 37 petition
filed by appellant. As authority, the State cites Lee v. State, 367 Ark. 84, 238 S.W.3d 52
(2006), which presented a similar fact situation to the case at bar and resulted in this court
granting Lee’s motion to recall our mandate and reopen his postconviction proceedings.
Because a similar request for a recall of the mandate was not done in this case, the State asks
that we dismiss the present appeal for lack of jurisdiction.
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In reply, appellant argues that a recall of our mandate is not required for the circuit
court to have jurisdiction over his second Rule 37 petition. First, he asserts that our grant of
his counsel’s request to be appointed counsel on his behalf to represent him in the circuit
court validates the circuit court’s authority to hear the petition. He also argues that once this
court has issued its mandate at the conclusion of an appeal, jurisdiction “naturally” reverts
back to the circuit court. And finally, he argues that due to a change in the language of Rule
37.2 in 1990, petitioners are no longer required to seek this court’s permission before
pursuing a second Rule 37 proceeding. Appellant argues that it is more practical for circuit
courts to consider the propriety of second Rule 37 petitions, since that determination will
often turn on factual issues that require the presentation of evidence.
Despite appellant’s arguments to the contrary, we agree with the State that appellant
was required to ask this court to recall our mandate and allow him to pursue a second Rule
37 petition. This court has consistently upheld the rule that a petitioner is limited to one
petition for postconviction relief unless the first petition was specifically denied without
prejudice to allow the filing of a second petition. McCuen v. State, 328 Ark. 46, 941 S.W.2d
397 (1997). In Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), we explained that we
will recall a mandate only under “extraordinary circumstances.” Id. at 564, 114 S.W.3d at
222. In deciding to recall the mandate in Robbins, we explained that our decision was based
on three factors: (1) the presence of a defect in the appellate process; (2) a dismissal of
proceedings in federal court because of unexhausted state court claims; (3) the enhanced
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scrutiny that is required in death cases. Id. It is only when these unique circumstances are
present that this court will recall our mandate and reopen postconviction proceedings. Id. In
addition, this court established in Hill v. State, 363 Ark. 480, 215 S.W.3d 589 (2005), that
counsel appointed to represent indigent capital defendants in connection with unexhausted
state remedies after the mandate has issued, such as the federal public defenders in the instant
case, must be appointed by this court as required by Ark. R. Crim. P. 37.5.
Thus, our case law makes clear that two requirements must be met before this court
will reopen postconviction proceedings after the denial of a Rule 37 petition has been
affirmed by this court and the mandate has issued: (1) counsel for the appellant must obtain
permission to be appointed by this court, and (2) appellant must demonstrate to this court
extraordinary circumstances that warrant a reopening of postconviction proceedings.
Appellant has unquestionably fulfilled one requirement, by his counsel obtaining permission
from this court to represent him in circuit court proceedings, but we disagree with appellant’s
assertion that this grant of permission to proceed as counsel on his behalf is equivalent to a
recall of our mandate. We reiterate that the recall of a mandate is a separate and distinct action
that will be allowed only under exceptional circumstances, and without a recall of our
mandate, the circuit court has no authority to entertain a second Rule 37 petition.
Briefly addressing appellant’s additional arguments that a recall of our mandate is not
required, we find these arguments equally unavailing. The cases that appellant cites for the
proposition that jurisdiction “naturally” reverts to the circuit court are distinguishable; in
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short, they all involve situations where (1) the circuit court acquires jurisdiction to hear postconviction proceedings following our mandate of a direct appeal; or (2) the circuit court has
jurisdiction to take further action specifically pursuant to a remand order in our mandate.
The few cases cited to support his proposition that the change in Rule 37.2 allows second
petitions without leave are also unconvincing; appellant merely cites to several orders of this
court granting permission for an attorney to proceed on behalf of a particular petitioner. And,
despite any changes to our rules of criminal procedure, our holding in Robbins made clear that
an appellant must ask this court to recall our mandate before postconviction proceedings can
be reopened.
In sum, to allow petitioners to file multiple Rule 37 petitions without leave of this
court would fly squarely in the face of Rule 37.2(b), which provides:
All grounds for relief available to the petitioner under this rule must be raised in his
or her original petition unless the petition was denied without prejudice. Any ground
not so raised or any ground finally adjudicated or intelligently and understandingly
waived in the proceedings which resulted in the conviction or sentence, or in any
other proceedings that the petitioner may have taken to secure relief from his or her
conviction or sentence, may not be the basis for a subsequent petition. All grounds for
post-conviction relief from a sentence imposed by a circuit court, including claims that
a sentence is illegal or was illegally imposed, must be raised in a petition under this
rule.
Ark. R. Crim. P. 37.2(b) (2009). We therefore hold that a petitioner must ask this court to
recall its mandate and reopen postconviction proceedings before a second Rule 37 petition
can be brought in circuit court. Because this has not been done in the present case, the circuit
court was without jurisdiction to entertain a second Rule 37 petition, and this court is
likewise without jurisdiction to hear an appeal from any decision of the circuit court in the
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matter. We therefore dismiss the appeal without prejudice.
Dismissed without prejudice.
Imber, J., not participating.
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