Marshall v. State

Cite as 2017 Ark. 208

SUPREME COURT OF ARKANSAS
No. CR-17-248

Opinion Delivered JUNE 1, 2017
CALVIN LEE MARSHALL
PETITIONER PRO SE MOTION FOR BELATED
APPEAL [PHILLIPS COUNTY
V. CIRCUIT COURT, NO. 54CR-91-
306]
STATE OF ARKANSAS
RESPONDENT HONORABLE RICHARD L.
PROCTOR, JUDGE

MOTION TREATED AS MOTION
FOR RULE ON CLERK AND
DENIED.

SHAWN A. WOMACK, Associate Justice

Petitioner Calvin Lee Marshall brings a motion for belated appeal of an order entered

denying his pro se petition for scientific testing under Act 1780 of 2001 Acts of Arkansas, as

amended by Act 2250 of 2005 and codified as Arkansas Code Annotated sections 16-112-

201 to -208 (Repl. 2016). We treat the motion as one for rule on clerk and deny it.

In 1992, a jury convicted Marshall on charges that he kidnapped, raped, and

murdered one victim and murdered another. Marshall received an aggregate sentence of

life without parole, and this court affirmed the judgment on appeal. Marshall v. State, 316

Ark. 753, 875 S.W.2d 814 (1994). On March 4, 2016, Marshall filed in the trial court a

petition for leave to proceed in forma pauperis on a pro se petition in which he sought

scientific testing under Act 1780. The Act 1780 petition was also filed on the same date.

On March 22, 2016, the circuit court entered an order finding that the in forma pauperis
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petition was denied “due to venue issues,” and on October 21, 2016, an order was entered

denying the Act 1780 habeas petition. Marshall filed a notice of appeal for the October 21

order on November 8, 2016, and another on November 16, 2016. Both notices were

timely filed.1

On December 29, 2016, Marshall filed in the trial court another petition to proceed

in forma pauperis. This time the petition sought to proceed with a motion for rule on clerk

in which Marshall sought to have the circuit clerk provide him with the certified record to

appeal the October 21, 2016 order and alleged that the clerk’s refusal to do so was in

violation of Act 1780. The motion for rule on clerk submitted with the petition was not

filed in the trial court, and on February 2, 2017, Marshall filed another in forma pauperis

petition that sought to proceed with a notice of appeal in which Marshall contended that

the unfiled motion for rule on clerk had been “deemed denied.” A different judge entered

an order on February 2, 2017, granting the new in forma pauperis petition to proceed with

the notice of appeal. The notice of appeal was filed that same day, and the record on appeal

was then tendered to this court on March 20, 2017. The clerk declined to file the record

on the basis that it was not tendered within ninety days of the November 8, 2016 notice of

appeal.

Marshall then filed his pro se motion for belated appeal in this court. In his motion,

Marshall requests permission to lodge the record and proceed with an appeal of the October

21, 2016 order denying the Act 1780 petition on the basis that his appeal has been “illegally

1
Act 1780 provides that an appealing party must file a notice of appeal within thirty
calendar days of the entry of an order under the Act.
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thwarted” by the circuit clerk and that Act 1780 required his appeal to go forward without

cost despite the denial of his petition to proceed as a pauper on the Act 1780 petition.

Marshall does not request permission to proceed with an appeal on the denial of the in forma

pauperis petition or contend that he should be permitted to appeal what he had alleged was

the “deemed denied” order on the unfiled motion for rule on clerk.

Because the notice of appeal of the October 21, 2016 order was timely, we treat

Marshall’s motion as one for rule on clerk. Holland v. State, 358 Ark. 366, 367, 190 S.W.3d

904, 905 (2004) (per curiam); see also King v. State, 2016 Ark. 450 (per curiam) (holding

moot a motion for belated appeal when notice of appeal was timely filed). Arkansas Rule

of Appellate Procedure–Criminal 4(b) (2016) requires that the record be tendered to this

court within ninety days of the date of the notice of appeal. Even if the earlier of the two

notices of appeal was invalid and the later filing date for the second notice was used for the

calculation of the ninety-day deadline to submit the record under Rule 4(b), the time

expired on February 14, 2017—well before the record was tendered to this court on March

20, 2017.

Marshall does not contend that the record was submitted within the required time.

Instead he alleges that the clerk’s failure to provide him with a certified record caused the

delay. The duty to conform to procedural rules applies even when 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. King, 2016 Ark. 450. When a

petitioner fails to perfect an appeal in accordance with the prevailing rules of procedure, the

burden is on the petitioner, even if he is proceeding pro se, to establish good cause for failure

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to comply with the procedural rules. Clemons v. State, 2014 Ark. 454, 446 S.W.3d 619 (per

curiam). It is true, as Marshall contends, that Act 1780 prohibits any charge for fees or bond

for costs to bring an appeal of the denial of an order on a petition under the Act. Ark. Code

Ann. § 16-112-206(c). We need not consider Marshall’s claim that this provided him with

good cause for the delay in this case, however, because he cannot prevail on appeal.

An appeal of the denial of postconviction relief, including an appeal from an order

denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go

forward when it is clear that the appellant could not prevail. Wells v. State, 2017 Ark. 88,

___ S.W.3d ___ (per curiam). Because Marshall failed to state a basis on which the trial

court could have ordered scientific testing under the statutes, he cannot prevail on appeal.

Act 1780 provides that a writ of habeas corpus may be issued based on new scientific

evidence proving a person actually innocent of the offense for which he was convicted.

Ark. Code Ann. § 16–112–201; Hill v. State, 2016 Ark. 258, 493 S.W.3d 754 (per curiam).

Under the statute, when a petitioner fails to provide factual support for the claim that there

is scientific evidence that bears on his case, he has failed to demonstrate that he is entitled

to relief. Id. Arkansas Code Annotated section 16-112-202 requires that a petitioner who

requests relief and who seeks scientific testing to provide the basis for his relief must identify

evidence for testing that meets specific criteria set out in the statute, and the evidence

identified must meet certain predicate requirements under the statutes. Clemons, 2014 Ark.

454, 446 S.W.3d 619. If the petitioner does not state the specific scientific evidence to be

tested, then his petition is wholly without merit under the statute. Darrough v. State, 2014

Ark. 334, 439 S.W.3d 50 (per curiam).

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As in Darrough, Marshall’s pro se Act 1780 petition failed to identify any specific

evidence that he would have tested, despite the petition indicating that certain attachments

would do so. The trial court, however, appears to have denied the petition because it found

that the petition contained no allegations that the judgment in Marshall’s case imposed an

illegal sentence or was illegal on its face or that the trial court lacked jurisdiction in the case.

In addition to his request for scientific testing, Marshall raised claims in the petition

that were not cognizable under Act 1780. Petitions under the Act are limited to those

claims related to scientific testing of evidence. Hill, 2016 Ark. 258, 493 S.W.3d 754. The

Act does not provide an opportunity for the petitioner to raise issues outside the purview

of the Act, and a petition under the Act does not serve as a substitute for the pursuit of other

remedies. Id. Yet, Marshall was incarcerated in Lee County when he filed his petition, and

because he was not in custody in Phillips County when he filed his petition and specifically

identified Act 1780, his petition should have been considered under the Act as one for

scientific testing rather than under Arkansas Code Annotated sections 16-112-101 to -123

(Repl. 2016). See Clemons v. State, 2013 Ark. 18 (per curiam).

This court will affirm the circuit court’s decision because it reached the right result,

albeit for the wrong reason. White v. State, 2015 Ark. 100, 460 S.W.3d 279 (per curiam);

Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). Marshall therefore could not prevail if

the appeal were permitted to proceed.

Motion treated as motion for rule on clerk and denied.