Eugene Wesley v. State of Arkansas
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ARKANSAS SUPREME COURT
No.
07-375
Opinion Delivered
May 10, 2007
PRO SE MOTION FOR BELATED
APPEAL [CIRCUIT COURT OF
JEFFERSON COUNTY, CV 2006-547,
HON. ROBERT H. WYATT, JR.,
JUDGE]
EUGENE WESLEY
Petitioner
v.
MOTION TREATED AS MOTION FOR
RULE ON CLERK AND DENIED.
STATE OF ARKANSAS
Respondent
PER CURIAM
In 2006, petitioner Eugene Wesley, who is incarcerated in the Arkansas Department of
Correction by virtue of several criminal convictions, filed in the circuit court in the county where he was
incarcerated a pro se petition for writ of habeas corpus. The petition was denied on August 30, 2006.
Petitioner timely filed a notice of appeal from the order on September 21, 2006, but he did not tender
the record to this court within ninety days of the date of the notice of appeal as required by Ark. R. App.Civil 5(a). On April 11, 2007, petitioner submitted a partial certified record of the lower court
proceedings and filed the instant motion seeking leave to lodge the record belatedly and proceed with
an appeal of the August 30, 2006, order. As the notice of appeal was timely filed, we treat the motion
as a motion for rule on clerk. See Johnson v. State, 342 Ark. 709, 30 S.W.3d 715 (2000) (per curiam);
see also Muhammed v. State, 330 Ark. 759, 957 S.W.2d 692 (1997) (per curiam).
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) (per curiam). 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) (per curiam). The fact that a petitioner is proceeding pro se does
not in itself 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) (per curiam); Thompson v. State, 280 Ark. 163, 655
S.W.2d 424 (1983) (per curiam); see also Sullivan v. State, 301 Ark. 352, 784 S.W.2d 155 (1990)
(per curiam).
Petitioner here asserts that he should be permitted to lodge the record belatedly because the
circuit clerk did not inform him until November 9, 2006, that the record would not be prepared until
he tendered the fee for the record. Petitioner does not contend that he filed a motion to proceed in forma
pauperis in circuit court, and the partial record tendered by petitioner with the instant motion does not
contain such a motion or any order pertaining to a request to proceed as an indigent. A petitioner who
is unable to afford the fee for an appeal record may seek leave from the circuit court by motion to
proceed in forma pauperis. If the motion is denied, he or she may appeal from the order. The filing of
a motion for belated appeal in this court is not a substitute for seeking to proceed as an indigent below
or for an appeal from an order that denied indigent status.
The purpose of the rule setting time limitations on lodging a record is to eliminate unnecessary
delay in the docketing of appeals. We have made it abundantly clear that we expect compliance with
the rule so that appeals will proceed as expeditiously as possible. Jacobs v. State, 321 Ark. 561, 906
S.W.2d 670 (1995) (per curiam)(citing Alexander v. Beaumont, 275 Ark. 357, 629 S.W.2d 300
(1982) (per curiam)). It is not the responsibility of the circuit clerk, or anyone other than the pro se
party desiring to appeal, to perfect the appeal. See Sullivan, supra. The pro se litigant receives no
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special consideration on appeal and bears the burden of conforming to the prevailing rules of procedure.
Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000); see Gibson v. State, 298 Ark. 43, 764 S.W.2d
617 (1989). He or she may not shift that burden to the circuit clerk.
As it was the duty of the petitioner to tender the record to this court in a timely manner, and he has not
established good cause for his failure to do so, the motion to proceed with the appeal is denied.
Motion for belated appeal treated as motion for rule on clerk and denied.
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