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                   SUPREME COURT OF ARKANSAS.
                                        No.   CR-16-839


ROBERT EARL WOODS                                 Opinion Delivered January   12, 2017
                                APPELLANT
                                                  PRO SE MOTION FOR EXTENSION
V.                                                OF TIME TO FILE BRIEF
                                                  [PULASKI COUNTY CIRCUIT
                                                  COURT, NO. 60CR-14-1744]
STATE OF ARKANSAS
                                  APPELLEE
                                                  APPEAL DISMISSED; MOTION MOOT.

                                       PER CURIAM


        On December 8, 2014, appellant Robert Earl Woods pleaded guilty to two counts

 of rape. In a March 18, 2015 order, Woods was sentenced to an aggregate sentence of 480

 months’ imprisonment in the Arkansas Department of Correction. On May 5, 2015,

 Woods filed his first petition for postconviction relief pursuant to Arkansas Rule of Criminal

 Procedure 37.1 (2015), alleging various grounds of ineffective assistance of counsel. After

 an evidentiary hearing on February 19, 2016, the trial court denied postconviction relief in

 an order file-marked on April 19, 2016. Woods subsequently filed a second Rule 37.1

 petition on May 23, 2016. The trial court denied the postconviction petition on June 10,

 2016, and Woods lodged an appeal with this court, seeking to appeal the denial of relief. 1

 Now before us is Woods’s motion for extension of time to file a brief.




        1
         Woods’s notice of appeal references a final order entered on June 23, 2016. There
 is no order entered on that date contained in the record; however, the trial court’s order
 denying Woods’s Rule 37.1 petition was file-marked on June 10, 2016.
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       When it is clear from the record that the appellant cannot prevail if an appeal of an

order that denied postconviction relief were permitted to go forward, we dismiss the appeal.

Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012

Ark. 91. As it is clear from the record that Woods could not prevail on appeal, the appeal

is dismissed. The dismissal of the appeal renders the motion for extension of time to file

brief moot.

       Rule 37.2(b) provides that all grounds for relief available to a petitioner under the

Rule must be raised in his or her original petition unless the original petition was denied

without prejudice to filing a second petition. See Hinkston v. State, 2016 Ark. 4, at 4 (per

curiam). If a first petition under the Rule is denied without leave to proceed with a second

petition, a petitioner under the Rule is barred from submitting a subsequent petition. See

Cooper v. State, 2014 Ark. 243 (per curiam). Woods failed to demonstrate that his first Rule

37 petition was denied without prejudice; therefore, a subsequent Rule 37.1 petition would

be prohibited. Hinkston, 2016 Ark. 4. The trial court properly denied Woods’s request for

postconviction relief because Woods attempted to raise claims in an unauthorized second

Rule 37.1 petition.

       Additionally, Rule 37.2(c) requires that, when an appellant entered a plea of guilty,

a petition under the Rule must be filed in the trial court within ninety days of the date of

entry of judgment. Ark. R. Crim. P. 37.2(c)(i); see Engstrom v. State, 2016 Ark. 45, 481

S.W.3d 435 (per curiam) (Petitioner’s Rule 37.1 petition referenced a 2012 judgment in his

2015 petition, which was outside the ninety-day period to seek relief under the Rule in that

case.); see also Cook v. State, 2016 Ark. 328 (per curiam); Winnett v. State, 2012 Ark. 404

                                              2
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(per curiam). Consequently, Woods filed his unauthorized second Rule 37.1 petition in

May 2016, over a year after entry of judgment from his plea of guilty—clearly outside the

ninety-day period to seek relief under the Rule, making it likewise untimely. See Banks v.

State, 2015 Ark. 368, at 2–3 (per curiam). The Rule 37.1 petition was not timely filed; as

a result, the trial court did not have the authority to grant the relief sought. See Tolliver v.

State, 2016 Ark. 111 (per curiam). Because it is clear from the record that Woods could not

prevail on appeal, we dismiss the appeal, and the motion is therefore moot.

       Appeal dismissed; motion moot.




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