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                    SUPREME COURT OF ARKANSAS.
                                          No.   CR-16-35


                                                   Opinion Delivered March   10, 2016
DARCEL DAMIARIO TOLLIVER

                                 APPELLANT PRO SE MOTIONS FOR AN
                                           EXTENSION OF TIME TO FILE
V.                                         APPELLANT’S BRIEF HEMPSTEAD
                                           COUNTY CIRCUIT COURT
STATE OF ARKANSAS                          [NO. 29CR-11-38]
                                  APPELLEE
                                           HONORABLE DUNCAN CULPEPPER,
                                           JUDGE

                                                   APPEAL DISMISSED; MOTIONS
                                                   MOOT.

                                         PER CURIAM


        Appellant Darcel Damiario Tolliver, filed a motion to file a belated petition for

 postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure.

 The circuit court entered an order that dismissed the request for postconviction relief

 because it did not comply with the 90-day time limitation imposed by Rule 37.2(c)(i) (2015)

 of the Arkansas Rules of Criminal Procedure. Tolliver lodged this appeal and filed a motion

 and a second motion seeking an extension of time to file his brief. Tolliver’s brief was filed

 timely on February 22, 2016. Nevertheless, this court will not permit an appeal from an

 order that denied a request for postconviction relief if it is clear that the appellant could not

 prevail. Smith v. State, 367 Ark. 611, 242 S.W.3d 253 (2006) (per curiam). Because it is

 clear that appellant cannot prevail on appeal, we dismiss the appeal, and Tolliver’s motions

 for an extension to file his brief are moot.
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        On March 21, 2011, Tolliver pled guilty to multiple felony offenses and was

sentenced as a habitual offender to 240 months’ imprisonment. On September 12, 2011,

Tolliver filed a petition to correct an illegal sentence pursuant to Ark. Code Ann. § 16-90-

111(Repl. 2011) and lodged an appeal from the denial of his petition. We treated the

petition as a claim for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of

Criminal Procedure, and dismissed the appeal because the petition was filed 175 days after

the judgment of conviction was entered, which was untimely. Tolliver v. State, 2012 Ark.

46 (per curiam). In that opinion, we made it clear that time limitations imposed by Rule

37.2(c) are jurisdictional and if they are not met, the trial court lacks authority to grant relief.

Id. at 3.

        Three years after his first untimely petition for postconviction relief was dismissed by

this court, Tolliver filed a pleading styled “motion for belated Rule 37.1” on September 25,

2015, and alleged that his guilty plea was the result of ineffective assistance of counsel

because counsel erroneously advised that Tolliver would be eligible for parole after serving

five years of his twenty-year sentence. According to Tolliver, his plea was not intelligently

made because it was based on misinformation provided by his ineffective counsel. Tolliver

further contended that he was entitled to relief despite his failure to comply with the time

limits imposed by Rule 37.2 based on recent United States Supreme Court decisions in

Martinez v. Ryan, 566 U.S. __, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 569 U.S. __,

133 S. Ct. 1911 (2013).       Tolliver asserted that the holdings in these two United States

Supreme Court decisions mandate review of claims that have been procedurally defaulted.




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Tolliver’s reliance on Martinez and Trevino as a means to disregard the requirements of the

Arkansas Rules of Criminal Procedure is misplaced.

       The Martinez Court held that, when state law requires a prisoner to use a collateral

attack rather than a direct appeal to raise an ineffective-assistance-of-counsel claim, the

prisoner’s failure to comply with state rules in bringing his collateral attack on the judgment

will no longer bar a federal judge from granting habeas relief on that claim, if the prisoner

had no attorney to represent him in the collateral proceeding or his attorney was ineffective

and if the petition filed in the state court had a meritorious claim. Martinez, 566 U.S. __,

132 S. Ct. at 1318-19; See Abernathy v. State, 2015 Ark. 126, at 2-3, 458 S.W.3d at 242 (per

curiam). In Trevino, the Court extended its holding in Martinez to cases in which a state’s

procedural framework make it unlikely that a defendant would have a meaningful

opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal. Trevino,

566 U.S. __, 133 S. Ct. at 1919–20; Abernathy, 2015 Ark. 126, 2-3, 458 S.W.3d at 242.

Neither the ruling in Martinez nor the ruling in Trevino precluded states from placing

requirements or limits on state postconviction relief. Abernathy, 2015 Ark. 126, at 3-4, 458

S.W.3d at 243. This court has held that such requirements and other limitations on

postconviction relief do not violate the right to due process. Id. Contrary to Tolliver’s

contention, the rulings in Martinez and Trevino did not provide a basis for state courts to

excuse petitioners from compliance with these state procedural rules. Rather, these cases

recognized a basis for federal courts to excuse a procedural default when reviewing a petition

for habeas corpus that has been filed in federal court. See Trevino, 566 U.S. at__, 132 S. Ct.

at 1320 (a procedural default will not bar a federal habeas court from hearing a substantial

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claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was

no counsel or counsel in that proceeding was ineffective).

       To the extent that Tolliver was alleging that the State’s failure to provide

postconviction counsel excused his failure to file a timely postconviction petition, he is

mistaken. While Trevino clarified aspects of Martinez, it did not require states to make

provision for every petitioner in a collateral attack on a judgment to have counsel. Stalnaker

v. State, 2015 Ark. 250, at 9–10, 464 S.W.3d 466, 472 (per curiam). Postconviction matters

are considered civil in nature, and there is no absolute right to counsel. Id.

       We dismiss the appeal because the trial court correctly determined that the petition

was not timely filed. Pursuant to Arkansas Rule of Criminal Procedure 37.2(c)(i) (2015) if

a conviction was obtained by a plea of guilty a petition claiming relief must be filed within

ninety days of the date of entry of judgment.        As the petition was not timely filed, the

circuit court did not have the authority to grant the relief sought. Sanders v. State, 2015

Ark. 249, at 1-2 (per curiam). There are no provisions in the prevailing rules of procedure

that permit a petitioner to file his petition outside the time limits set by Rule 37.2(c) of the

Arkansas Rules of Criminal Procedure, and the United States Supreme Court’s holdings in

Martinez and Trevino did not create an excuse for failing to file a postconviction petition

within those time limits.

       Appeal dismissed. Motions moot.




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