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


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  •                                      Cite as 
    2016 Ark. 46
    SUPREME 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.
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    2016 Ark. 46
    Anderson 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.
    2
    Cite as 
    2016 Ark. 46
    Moreover, the petition that Anderson seeks to have filed would not come under such an
    exception, even if applicable.
    Motion denied.
    3
    

Document Info

Docket Number: CV-15-228

Citation Numbers: 2016 Ark. 46

Judges: Per Curiam

Filed Date: 2/4/2016

Precedential Status: Precedential

Modified Date: 3/9/2017