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                   SUPREME COURT OF ARKANSAS.
                                       No.   CV-15-931


                                                Opinion Delivered February   4, 2016
CARL DAVIS, JR.
                              PETITIONER PRO SE MOTION TO FILE BELATED
                                         APPEAL AND RULE ON CLERK
V.                                       [LINCOLN COUNTY CIRCUIT COURT, NO.
                                         40CV-14-66]
STATE OF ARKANSAS ET AL.
                          RESPONDENTS HONORABLE JODI RAINES
                                      DENNIS, JUDGE

                                                MOTION DENIED.

                                      PER CURIAM


        Petitioner Carl Davis, Jr., filed a petition for declaratory judgment and writ of

 mandamus in the Lincoln County Circuit Court in which he sought a declaratory judgment

 concerning the calculation of his parole eligibility date and a writ of mandamus directing a

 number of state officers and employees to recalculate it. On April 17, 2015, the circuit

 court entered an order that denied the petition, and, on September 13, 2015, Davis filed his

 notice of appeal. When the record was tendered to this court, our clerk declined to lodge

 it because the notice of appeal was not timely. Davis filed the instant motion requesting

 permission to proceed with an appeal through rule on clerk or by belated appeal. We deny

 the motion.

        Under Arkansas Rule of Appellate Procedure–Civil 4(a) (2015), Davis was required

 to file his notice of appeal within thirty days of the date of the entry of the order to be

 appealed unless an extension of time was granted in accord with the rule. Our clerk was
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not mistaken in concluding that the notice of appeal was not timely, and Davis does not

contend that he filed the notice of appeal within the required time.

       Instead, Davis asserts that, because the circuit court failed to promptly mail the order

to him, he was not properly notified of the April 17, 2015 order and he should be excused

for failing to timely file his notice of appeal. He alleges that he did not receive a copy of

the order until September 2, 2015; that the copy of the order was enclosed with a letter to

him from the clerk dated August 31, 2015; and that the clerk’s letter indicated the judge’s

office had advised the clerk that the order had been mailed to Davis from that office. The

record includes the clerk’s letter to Davis as he described it, and the clerk’s letter appears to

have been sent in response to Davis’s August 31, 2015 motion requesting a status update in

the matter.

       Davis cites Arkansas Supreme Court Rule 2-2 (2015) for rule on clerk, but, if the

notice of appeal was filed late, the motion is properly treated as one for belated appeal. See

Johnson v. State, 2015 Ark. 195 (per curiam). Under Arkansas Rule of Appellate Procedure–

Criminal 2(e), this court may act upon and decide a case in which the notice of appeal was

not filed in the time prescribed when a good reason for the omission is shown. See Bean v.

State, 2014 Ark. 440 (per curiam). This proceeding was a civil matter, but this court treats

declaratory-judgment proceedings as applications for postconviction relief in those instances

where a petitioner seeks relief from the conditions of incarceration. Cridge v. Hobbs, 2014

Ark. 153 (per curiam).

       Davis cites Berks v. State, 2015 Ark. 234, 463 S.W.3d 289 (per curiam) in support of

the proposition that he has shown good cause for the delay in filing the notice of appeal.

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But, Berks concerned a situation in which the circuit court was obligated to provide notice

of the denial of a petition under Arkansas Rule of Criminal Procedure 37.1.

       Arkansas Rule of Criminal Procedure 37.3(d) (2015) contains a mandatory

requirement that the circuit court provide prompt notice to the petitioner of an order

entered on a Rule 37.1 petition. Nelson v. State, 2013 Ark. 316 (per curiam). This court

has recognized good cause to excuse a petitioner’s failure to timely file a notice of appeal in

cases where the circuit court has failed to abide by Rule 37.3(d). Green v. State, 2015 Ark.

198 (per curiam). Under circumstances such as those in the instant proceedings, that is,

where there was no absolute duty imposed on a judge or a clerk to notify the petitioner that

a petition for postconviction relief had been denied, a failure to provide timely notice of the

denial does not in itself constitute good cause for the failure to file a timely notice of appeal.

Barber v. State, 2015 Ark. 267 (per curiam).

       Although he filed his notice of appeal 149 days after entry of the April 17, 2015

order, Davis failed to file a motion seeking an extension of time under Arkansas Rule of

Appellate Procedure–Civil 4(b)(3) within 180 days of entry of the order, and he offers no

reason why he did not seek an extension under Rule 4(b)(3). Our law imposes a duty on

lawyers and litigants to exercise reasonable diligence to keep up with the status of their cases,

and pro se litigants are held to the same standard as licensed attorneys. Id. Davis contends

that he was not at fault, and, as noted, he filed a motion seeking the status of the case. Yet,

Davis became aware of the April 17, 2015 order well within the period of time for filing a

motion for an extension of time in which to file his notice of appeal under Rule 4.




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       If Davis had exercised diligence in checking on the status of the case and had

otherwise met the requirements of Rule 4, the circuit court would have had an absolute

obligation to grant his motion for extension of time. Arkco Corp. v. Askew, 360 Ark. 222,

200 S.W.3d 444 (2004). Davis has not therefore provided an excuse for his failure to file a

timely notice of appeal that would constitute good cause for the omission.

       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 to comply with the procedural rules. Early v. Hobbs, 2015 Ark. 313,

467 S.W.3d 150 (per curiam). 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 doing so. Miller v. State, 2013

Ark. 182 (per curiam). Davis failed to meet his burden to establish good cause for his failure

to comply with our procedural rules.

       Motion denied.




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