Cite as 2017 Ark. 89

No. CV-17-44

CURTIS RAY HOWARD

PETITIONER

V.

HARLIN A. WEBBER AND/OR 

RICHARD ADKISSON, FORMER 

JUDGES, AND LESLIE RUTLEDGE, 

ATTORNEY GENERAL OF 

ARKANSAS

RESPONDENTS

Opinion Delivered March 9, 2017

PRO SE MOTION FOR BELATED 

APPEAL OF ORDER 

[LEE COUNTY CIRCUIT COURT, NO. 

39CV-16-74]

HONORABLE RICHARD L. PROCTOR, 

JUDGE

MOTION DENIED.

PER CURIAM

Petitioner Curtis Ray Howard is incarcerated in a unit of the Arkansas Department 

of Correction located in Lee County. On July 1, 2016, he filed in the Lee County Circuit 

Court a pro se petition for writ of habeas corpus, seeking release from custody. On August 

2, 2016, an order was entered denying the petition. Thirty-five days later, on September 

6, 2016, Howard filed an untimely notice of appeal.

Now before us is Howard’s pro se motion seeking to proceed with a belated appeal

of the August 2, 2016 order. Arkansas Rule of Appellate Procedure –Civil 4(a) (2016) 

requires that a notice of appeal be filed within thirty days of the date an order is entered. 

Here, the thirty-day period to file a timely notice of appeal ended Thursday, September 1, 

2016. 

While a habeas proceeding is a civil matter, a petitioner may seek to proceed with a 

belated appeal of a ruling on a petition for postconviction relief, which includes the denial 

SUPREME COURT OF ARKANSAS.
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2

of a petition for writ of habeas corpus. See Sillivan v. Hobbs, 2014 Ark. 88 (per curiam); see 

also Wesley v. Harmon, 2010 Ark. 21, at 2. However, a belated appeal will not be allowed 

absent a showing by the petitioner of good cause for the failure to comply with proper 

procedure by filing a timely notice of appeal and perfecting the appeal to this court. Wesley, 

2010 Ark. 21, at 2. 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 of conforming to the rules of procedure or demonstrating good cause for 

not so conforming. McDaniel v. Hobbs, 2013 Ark. 107, at 2 (per curiam). The pro se 

appellant receives no special consideration on appeal. Id. at 3. This court has made it 

abundantly clear that it expects compliance with the rules of this court so that appeals will 

proceed as expeditiously as possible. Day v. Hobbs, 2014 Ark. 189, at 3 (per curiam). 

Howard alleges that he placed his notice of appeal in the institutional mail on August 2, 

2016, which was the day that the order was entered denying the habeas petition. He argues 

that the notice of appeal should be considered timely pursuant to Houston v. Lack, 487 U.S. 

266 (1988). Houston stands for the proposition, generally known as the “prison mailbox 

rule,” that a notice of appeal in some federal-court matters is considered filed by a pro se 

prisoner when he delivers it to prison authorities for mailing. 

Arkansas Rule of Criminal Procedure 37.2 (2016) 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) (2016) that allows an exception to the filing 
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3

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. 

Ark. R. Crim. P. 37.2(g); see Anderson v. Kelley, 2016 Ark. 46, at 2 (per curiam). The 

requirements set out in the Rule do not apply to other pleadings that may be filed by 

incarcerated persons. As to Houston, we have held that Houston is an interpretation of a 

federal rule of appellate procedure and is not, in and of itself, dispositive of this court’s 

decision to grant or deny a motion for belated appeal. See Key v. State, 297 Ark. 111, 759 

S.W.2d 567 (1988).

Here, it appears the record does not support Howard’s contentions. He argues that 

he mailed the notice of appeal on August 2, 2016, that the envelope was post-marked August 

2, and that the clerk acknowledged receipt on August 2. However, the record reflects that 

Howard signed his notice of appeal on August 26, that the envelope was post-marked on 

September 1, the notice of appeal was filed on Sept 5, and the letter from the clerk certifying 

the reorder was dated Sept. 15. Even if the notice was placed in the prison mail as Howard 

on August 26, the date he signed it, he fails to so much as allege that the notice was not sent 

from the prison without undue delay, that it was delayed by the postal service once it had 

been mailed, or that the clerk received it before the notice was due but did not file-mark it

when received. There is clearly incongruity in Howard’s allegations. See McClinton v. State, 

2016 Ark. 461, at 3–4 (This court took note that it was incongruous that mail delivery from 

Grady, Arkansas, to Pine Bluff, Arkansas, amounted to seven days.) Howard has not 

explained in any fashion the cause for the lengthy delay in the delivering or filing of the 

notice, assuming he placed it in the prison mailbox on August 26. 
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4

Howard has not demonstrated that there was any good cause for the late filing of the 

notice of appeal.

Motion denied.