Anderson v. Kelley , 2016 Ark. 46 ( 2016 )

Cite as 2016 Ark. 46SUPREME COURT OF ARKANSAS.
No. CV-15-228
THEODORE A. ANDERSON Opinion Delivered February 4, 2016
APPELLANT
PRO SE MOTION FOR RULE ON CLERK
V. [LINCOLN COUNTY CIRCUIT COURT, NO.
40CV-14-89]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES
CORRECTION DENNIS, JUDGE
APPELLEE
MOTION DENIED.
PER CURIAM
Appellant Theodore A. Anderson, an inmate incarcerated in the Arkansas
Department of Correction, appealed the dismissal of his pro se petition for writ of habeas
corpus by the Lincoln County Circuit Court, and, on November 5, 2015, this court
affirmed. Anderson v. Kelley, 2015 Ark. 411, ___ S.W.3d ___ (per curiam). On December
11, 2015, Anderson tendered a belated petition for rehearing at the same time that he filed
a pro se motion for rule on clerk. Under Arkansas Supreme Court Rule 2-3 (2015), a
petition for rehearing must be filed within eighteen days of the date of the decision. In this
case, the last day for filing such a petition was November 23, 2015. In his motion, Anderson
contends that the petition should be filed even though it was tendered outside the deadline
for filing because he placed a petition for rehearing in the mail prior to expiration of the
deadline for filing. He asks this court to direct its clerk to file the belated petition for
rehearing.
Cite as 2016 Ark. 46Anderson asserts that he received notification of this court’s November 5 order on
November 9, 2015, and that he placed his petition for rehearing in the prison unit mailbox
on November 16, 2015. When he did not receive a file-marked copy within a period of
time, he made an inquiry. Anderson received a response indicating that there was no record
that the documents had ever been received and that the mandate had issued in the case.
Anderson contends that the prison mailbox rule applies, citing to Arkansas Rule of Criminal
Procedure 37.2 (2015).
Rule 37.2 now includes a provision under which a Rule 37.1 petition will be
deemed filed on the date that an incarcerated inmate deposited his or her petition in the
prison facility’s legal mail system, provided the conditions that are set out in the rule have
been satisfied. A similar provision is included in Arkansas Rule of Appellate Procedure–
Criminal 2(b)(3) (2015) that allows an exception to the filing deadline, when certain
conditions are met, for a notice of appeal of a judgment of conviction in circuit court or a
circuit court order that denied postconviction relief under Rule 37. Anderson’s procedural
default does not come within the parameters of either rule. He urges this court to expand
application of the prison mailbox rule.
Anderson would have us extend the prison mailbox rule to a petition for rehearing.
Neither of the procedural rules adopting that rule applies to such a petition. Anderson
makes no persuasive argument for permitting an extension to the deadline for filing petitions
for rehearing. The considerations to grant an exception to the deadline for filing such
petitions are far different from the exceptions currently recognized for other filing deadlines.
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Cite as 2016 Ark. 46Moreover, the petition that Anderson seeks to have filed would not come under such an
exception, even if applicable.
Motion denied.
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