McClinton v. State , 2016 Ark. LEXIS 381 ( 2016 )

Cite as 2016 Ark. 461SUPREME COURT OF ARKANSAS.
No. CR-16-79
Opinion Delivered December 15, 2016
EDMOND MCCLINTON, JR.
PRO SE APPEAL FROM THE
APPELLANT JEFFERSON COUNTY CIRCUIT
COURT
V. [NO. 35CR-12-106]
HONORABLE JODI RAINES DENNIS,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED IN PART; REVERSED
AND REMANDED IN PART.
PER CURIAM
Appellant Edmond McClinton, Jr. was convicted of raping a mentally handicapped,
sixteen-year-old girl and was sentenced as a habitual offender to a term of life imprisonment.
His conviction and sentence were affirmed by this court. McClinton v. State, 2015 Ark. 245,
464 S.W.3d 913, cert. denied, ___ U.S. ___, 136 S. Ct. 367 (2015). The mandate issued on
July 23, 2015. On September 22, 2015, McClinton filed in the trial court a pro se petition
under Arkansas Rule of Criminal Procedure 37.1 (2015) and motion for error coram nobis.
On November 18, 2015, the trial court dismissed the petition for postconviction relief and
coram-nobis relief, and McClinton lodged an appeal from the denial.
On appeal, McClinton contends that his postconviction petition was not untimely
as the trial court held because the postmark on his petition indicates it was mailed on
September 16, 2015, well before the September 21, 2016 due-date, and that the file-mark
Cite as 2016 Ark. 461of September 22, 2015, is a clerical error. He further contends he is entitled to coram-nobis
relief because his conviction “rest[ed] upon errors of fact[,]” including that there was no
evidence or signs of sexual intercourse; the police-evidence log did not have the DNA used
at trial in its records; there was no probable cause supporting his arrest; evidence should have
been suppressed; he did not have a preliminary hearing after his arrest; his counsel refused
to argue various violations of his due-process rights and counsel was otherwise ineffective;
and the jury “convicted [him] without burden of proof.”
Rule 37.2(c) requires that, when an appeal was taken of the judgment of conviction,
a petition under the Rule must be filed in the trial court within sixty days of the date the
mandate is issued by the appellate court. Ark. R. Crim. P. 37.2(c)(ii); see Hunt v. State,
2016 Ark. 168 (per curiam) (Petitioner’s Rule 37.1 petition was untimely filed on the sixty-
first day after the mandate issued.). The time requirements are mandatory, and, when a
petition under Rule 37.1 is not timely filed, a trial court shall not grant postconviction relief.
Hunt, 2016 Ark. 168; see Joslin v. State, 2015 Ark. 328 (per curiam).
Although this court adopted limited implementation of the prison-mailbox rule
through amendments to Rule 37 effective September 1, 2015, as McClinton indicates, a
petition under Rule 37.1 is not deemed filed on the date an incarcerated inmate deposited
his or her petition in the prison facility’s legal mail system unless conditions that are set out
in the Rule have been satisfied. See Anderson v. Kelley, 2016 Ark. 46 (per curiam); see also
In re Ark. Sup. Ct. Comm. on Criminal Practice—Ark. R. App. P.—Crim. 2 & Ark. R. Crim.
P. 37.2, 2015 Ark. 296 (per curiam). Those requirements under Rule 37.2(g) include: on
the date the petition is deposited in the mail, the petitioner is confined in a state correctional
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Cite as 2016 Ark. 461facility, a federal correctional facility, or a regional or county detention facility that maintains
a system designed for legal mail; the petition is filed pro se; the petition is deposited with
first-class postage prepaid, addressed to the clerk of the circuit court; and the petition
contains a notarized statement by the petitioner in the form as follows:
I declare under penalty of perjury:
that I am incarcerated in __________ [name of facility];
that I am filing this petition pro se;
that the petition is being deposited in the facility’s legal mail system
on __________ [date];
that first-class postage has been prepaid; and
that the petition is being mailed to __________ [list the name and address
of each person served with a copy of the petition].
____________________
(Signature)
[NOTARY]
Additionally, under Rule 37.2 (g), the envelope in which the petition is mailed to the circuit
clerk shall be retained by the circuit clerk and included in the record of any appeal of the
petition. Because McClinton did not meet the requirements of the prison-mailbox rule,
specifically that he did not include the above-referenced notarized statement in his Rule
37.1 petition, he does not benefit from its application.
Although the mailbox rule alleviates the need to question delays in the mail and had
McClinton utilized the mailbox-rule, which was an available option had he met the above-
referenced conditions, his Rule 37.1 petition would have been timely filed. However,
absent McClinton’s utilization of the mailbox-rule, this court may still consider his
contention of a clerical error regarding the reason for the delay—which included a weekend,
between September 16, 2015, a Wednesday, to September 22, 2015, a Tuesday—in the
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Cite as 2016 Ark. 461receipt and filing of the petition, which remains unexplained; although seven days of mail-
delivery time from Grady, Arkansas, to Pine Bluff, Arkansas, seems a bit incongruent for the
distance between the two locales.1 Although McClinton in his reply brief claimed he had
no knowledge of the mailbox rule, a petitioner, even one proceeding pro se, must conform
to the prevailing rules of procedure. See Newton v. State, 2014 Ark. 538, 453 S.W.3d. 125
(per curiam). Ignorance of the applicable procedural rules does not excuse a petitioner from
conforming to the prevailing rules of procedure. Adkins v. State, 2015 Ark. 336, at 3, 469
S.W.3d 790, 794 (per curiam).
Notwithstanding these requirements, this court finds, under these unique facts and
very limited circumstances, that McClinton’s Rule 37.1 and coram-nobis petition should
have been filed prior to the 60-day filing deadline. The matter is remanded for the circuit
clerk to file-mark McClinton’s Rule 37.1 petition as of September 21, 2015. Upon the
filing of the Rule 37.1 petition, the trial court should determine whether it has jurisdiction
over the matter and can reach the merits of the petition for Rule 37.1 relief and issue an
order accordingly ruling on and disposing of the Rule 37.1 petition—an order from which
McClinton may or may not subsequently seek to perfect an appeal.
Although McClinton stated various grounds alleging entitlement to coram-nobis
relief, many of which cannot be distinguished from his claims for Rule 37 relief, the trial
court denied relief, finding it did not have jurisdiction to entertain a petition for writ of
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There appears to be a handwritten notation, “9/22/15,” on the envelope that
contained McClinton’s petition, although there is no other notation with the date to
indicate that it is a received date or any other correlation for that date or whether the circuit
clerk’s office was responsible for writing the date.
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Cite as 2016 Ark. 461error coram nobis because this court had not granted McClinton permission by reinvesting
jurisdiction in the trial court. During the pendency of his direct appeal in this court,
McClinton filed a petition asking this court to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis. McClinton v. State, 2015 Ark. 161 (per
curiam). We found no ground for the issuance of a writ of error coram nobis, as it was
evident on the face of the petition that the alleged grounds for relief could easily have been
discerned at the time of the proceedings and raised in the trial court; that is, none of the
allegations of error was such that it could not have been settled at trial. Id. at 3.
A prisoner who appealed his judgment and who wishes to attack his
conviction by means of a petition for writ of error coram nobis must first request
that this court reinvest jurisdiction in the trial court because the filing of the transcript in
an appellate court deprives the trial court of jurisdiction. Maxwell v. State, 2012 Ark.
251(per curiam). . . . The petition for leave to proceed in the trial court is
necessary because the trial court can entertain a petition for writ of error
coram nobis after a judgment has been affirmed on appeal only after we grant
permission. Mackey v. State, 2014 Ark. 491 (per curiam).
Noble v. State, 2015 Ark. 141, at 5–6, 460 S.W.3d 774, 778–79 (quoting Green v. State, 2015
Ark. 25, 453 S.W.3d 677). Because McClinton’s record was in this court, the trial court
was deprived of jurisdiction to entertain his petition for coram-nobis relief at the trial-court
level, and, absent permission from this court to reinvest jurisdiction—which was not granted
when he requested it—the trial court properly dismissed the coram-nobis petition, and we
affirm that aspect of the court’s order. See Noble, 2015 Ark. 141, 460 S.W.3d 774.
Affirmed in part; reversed and remanded in part.
Edmond McClinton, Jr., pro se appellant.
Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee
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