Opinion
CR 10-463
Opinion Delivered September 30, 2010
Pro Se Motion for Extension of Time to File Brief [Circuit Court of Garland County, CR 2007-365, Hon. John Wright, Judge], Appeal Dismissed; Motion Moot.
In 2008, appellant Adam Davis, Jr, was found guilty by a jury of capital murder, attempted first-degree murder, and two counts of use of firearm in a felony. Consecutive sentences of life imprisonment without parole and a total of 720 months' imprisonment were imposed. We affirmed. Davis v. State, 2009 Ark. 478, ___ S.W.3d ___.
On December 16, 2009, appellant timely filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). On January 7, 2010, he filed a motion to amend the Rule 37.1 petition that was granted on January 12, 2010. Appellant subsequently filed a motion asking to be allowed sixty days to submit the amended petition. The court entered an order February 9, 2010, that provided that appellant would be allowed until March 31, 2010, to submit an amended petition "which complies in all respects to the terms of Rule 37." On March 17, 2010, appellant filed a motion asking the court for leave to file an amended petition that exceeded in length the ten pages allowed by Rule 37.1(b) for petitions under the rule. The court denied the motion on March 29, 2010, stating specifically that the amended petition must comply with the rule.
Rule 37.1(b) which limits the number of pages in a petition to ten does not specifically address whether an amended petition must also conform to the ten-page limit on length.
On March 30, 2010, appellant filed his amended Rule 37.1 petition which was twenty-two pages in length. The court dismissed the amended Rule 37.1 petition on the ground that it had specifically denied leave to file an amended petition that was more than ten pages in length. Appellant timely filed a notice of appeal from the March 29, 2010 order, and he lodged an appeal here. Now before us is his pro se motion for an extension of time to file the appellant's brief.
We need not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal of the March 29, 2010 order if the appeal were permitted to go forward. Accordingly, the appeal is dismissed, and the motion is moot. An appeal from an order that denied a petition for postconviction relief will not be permitted to proceed where it is clear that the appellant could not prevail. Goldsmith v. State, 2010 Ark. 158 (per curiam); Watkins v. State, 2010 Ark. 156, ___ S.W.3d ___ (per curiam); Meraz v. State, 2010 Ark. 121 (per curiam); Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam).
Appellant sought leave to file an amended petition longer than ten pages. The court denied the request. We find that the circuit court did not err in dismissing a petition that failed to adhere to the page limit dictated by the court.
While there is no constitutional right to a postconviction proceeding, when a state undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. Watkins, 2010 Ark. 156, ___ S.W.3d ___; Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004); Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Ark. Dep't of Corr. v. Bailey, 368 Ark. 518, 247 S.W.3d 851 (2007). Due process does not require courts to provide an unlimited opportunity to present postconviction claims. Watkins, 2010 Ark. 156, ___ S.W.3d ___; see Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989) (per curiam). This court has held that certain procedural requirements or other limitations on postconviction relief do not violate the right to due process. See, e.g., Croft v. State, 2010 Ark. 83 (per curiam) (a petition under the rule not verified in accordance with Rule 37.1(c) is subject to dismissal); Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988) (per curiam) (requiring a petition for postconviction relief to meet certain threshold requirements is fundamentally fair). We have held that the rule limiting petitions to ten pages is an entirely reasonable restriction on petitioners seeking postconviction relief. See Sanders v. State, 352 Ark. 16, 98 S.W.3d 35 (2003); see also Burkhart v. State, 310 Ark. 185, 834 S.W.2d 154 (1992) (per curiam); Washington v. State, 308 Ark. 322, 823 S.W.2d 900 (1992); Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989).
The trial court had the discretion to accept an amended petition that exceeded ten pages in length but declined to do so. Accordingly, appellant was obliged to proceed in accordance with the court's direction. He chose not to do so and must bear the consequences of his decision to submit an over-length amended petition.
Appeal dismissed; motion moot.