Betts v. State , 2014 Ark. 72 ( 2014 )

Cite as 2014 Ark. 72
SUPREME COURT OF ARKANSAS
No. CV-13-1096
Opinion Delivered February 13, 2014
PRO SE MOTION FOR BELATED
ALBERT BETTS APPEAL OF ORDER AND MOTION
PETITIONER FOR APPOINTMENT OF COUNSEL
[LEE COUNTY CIRCUIT COURT,
v. 39CV-13-88]
STATE OF ARKANSAS AND RAY
HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION MOTION FOR BELATED APPEAL
RESPONDENTS OF ORDER DENIED; MOTION FOR
APPOINTMENT OF COUNSEL
MOOT.
PER CURIAM
In 2013, petitioner Albert Betts filed a pro se petition for writ of habeas corpus in the
circuit court in Lee County where he was incarcerated.1 The circuit court denied the petition on
August 27, 2013. Petitioner did not timely file a notice of appeal from the order, and he now
seeks leave to proceed with a belated appeal. He also seeks appointment of counsel.
A petitioner has the right to appeal a ruling on a petition for postconviction relief, which
includes the denial of a petition for writ of habeas corpus. Wesley v. Harmon, 2010 Ark. 21 (per
curiam); McClain v. Norris, 2009 Ark. 428 (per curiam); see Scott v. State, 281 Ark. 436, 664 S.W.2d
475 (1984) (per curiam). If the petitioner fails to file a timely notice of appeal, a belated appeal
will not be allowed absent a showing by the petitioner of good cause for the failure to comply
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As of the date of this opinion, appellant remains incarcerated at the prison facility in
Lee County.
Cite as 2014 Ark. 72
with proper procedure. Wesley, 2010 Ark. 21; Garner v. State, 293 Ark. 309, 737 S.W.2d 637
(1987) (per curiam).
This court has consistently held that the burden to conform to procedural rules applies
even where the petitioner proceeds pro se, as all litigants must bear the responsibility for
conforming to the rules of procedure or demonstrating good cause for not so conforming.
Nelson v. State, 2013 Ark. 316 (per curiam); Hale v. State, 2010 Ark. 17 (per curiam) (citing Daniels
v. State, 2009 Ark. 607 (per curiam)); see also Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986)
(per curiam); 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). The pro se appellant receives no special
consideration on appeal. Nelson, 2013 Ark. 316.
Arkansas Rule of Appellate Procedure–Civil 4(a) (2013) requires that a notice of appeal
be filed within thirty days of the date an order is entered. Here, the final date to file a timely
notice of appeal was Thursday, September 26, 2013. As his sole ground to permit a belated
appeal, petitioner argues that his notice of appeal, which was file-marked by the circuit clerk on
September 27, 2013, should be considered timely filed because Monday, September 2, 2013, was
the Labor Day holiday and should not be counted when calculating the thirty-day period to file
the notice of appeal.
Computation of the time period for securing an appeal is done in accordance with Ark.
R. Civ. P. 6. Rule 6(a) provides the following:
In computing any period of time prescribed or allowed by these rules . . . the day of the
act, event or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it is a Saturday,
Sunday, legal holiday, or other day when the clerk’s office is closed, in which event the
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period runs until the end of the next day that the clerk’s office is open. When the period
of time prescribed or allowed is less than fourteen (14) days, intermediate Saturdays,
Sundays, or legal holidays shall be excluded in the computation. As used in this rule and
Rule 77(c), “legal holiday” means those days designated as a holiday by the President or
Congress of the United States or designated by the laws of this State.
Here, in accordance with the Rule, the thirty-day period to file a notice of appeal began on
August 27, 2013, and each calendar day should be included in calculating the thirty days to file
the notice, making the final day to file a timely notice of appeal Thursday, September 26, 2013.
See Whitmer v. Sullivent, 373 Ark. 327, 284 S.W.3d 6 (2008). The Rule does not require that a legal
holiday that occurred during that period be excluded in the calculation.
As petitioner’s only ground for the motion for belated appeal is without merit, he has not
established good cause for not meeting his burden of filing a timely notice of appeal. For that
reason, the motion to proceed with the appeal is denied. The motion for appointment of
counsel is moot.
Motion for belated appeal of order denied; motion for appointment of counsel moot.
Albert Betts, pro se petitioner.
No response.
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