No. CR-15-811
Opinion Delivered December 17, 2015
GIFFORD RAY
APPELLANT
PRO SE PETITIONS FOR WRIT OF
V. CERTIORARI AND MOTIONS FOR
APPOINTMENT OF COUNSEL AND
EXTENSION OF BRIEF TIME
STATE OF ARKANSAS [HOT SPRING COUNTY CIRCUIT
APPELLEE COURT,
NO. 30CR-90-30]
HONORABLE CHRIS E WILLIAMS,
JUDGE
APPEAL DISMISSED; PETITIONS
AND MOTIONS MOOT.
PER CURIAM
In 1990, appellant Gifford Ray was convicted of first-degree murder and sentenced to
life in prison. We affirmed. Ray v. State,
(1991). The mandate
from that appeal was issued on June 21, 1991. In 1993, Ray filed in the trial court a petition
for postconviction relief under Arkansas Rule of Criminal Procedure 36.4 (1990). The
petition was dismissed on the ground that it was not timely filed. We affirmed the order.
Ray v. State, CR-97-915 (Ark. Sept. 24, 1998) (unpublished per curiam).
At the time that Ray was convicted, Rule 36.4 was the postconviction rule in effect.1
Rule 36.4 required the trial court to advise the defendant at sentencing that he was entitled to
1
At the time the conviction in Ray’s case was entered, Arkansas Rule of Criminal Procedure 37.1
had been abolished, and this state’s postconviction remedy was encompassed in Rule 36.4. This
rule was later abolished and Rule 37.1 was reinstated in a revised form on January 1, 1991, as our
postconviction remedy. In re Rule 37, 303 Ark. App’x 746,
file within thirty days a motion for postconviction relief if he was dissatisfied with his
attorney’s representation. Ray did not file such a motion, but apparently attempted to
proceed under the version of Arkansas Rule of Criminal Procedure 37.1 (1991) that was in
effect before the abolishment of Rule 37 and its replacement with Rule 36.4. Under the
former version of Rule 37, a defendant whose conviction had been affirmed on appeal was
required to file a petition in the Supreme Court for permission to proceed under Rule 37 in
the trial court. The limitations period for taking such action was three years.
On appeal from the denial of the petition, he argued that the petition was not
untimely because he was entitled to the three-year limitations period under the former
version of Rule 37. The State, in its response, contended that Ray’s only possible avenues
for postconviction relief were provided by Rule 36.4 and the reinstated version of Rule 37.1.
The State argued that Ray could not proceed under either remedy in a timely manner. We
held that the State’s position was correct.
We have held that a defendant who was convicted when Rule 36.4 was in effect can
file a belated petition under Rule 36.4 when he demonstrates that he was not advised of his
right to proceed under the rule. Cherry v. State,
(1996). The
other circumstance in which a belated petition can be filed is when a federal district court
issues a conditional writ of habeas corpus. Raglin v. State,
(1997). A defendant who was convicted while Rule 36.4 was in effect, but whose conviction
was affirmed after Rule 37 was reinstated, was permitted sixty days from the date of the
mandate in which to file a petition. Pogue v. State,
was convicted when Rule 36.4 was in effect. His conviction was affirmed after the
reinstatement of Rule 37. Ray did not demonstrate that he was not advised of his right to
proceed under Rule 36.4, nor did he file his petition within sixty days of the date of the
appellate mandate. Ark. R. Crim. P. 37.2(b). Accordingly, this court held that Ray was not
entitled to postconviction relief under either rule.
On April 13, 2015, Ray filed in the trial court a “motion for a new trial or reduction
of sentence under a belated Rule 36.4 motion for a new trial” in which he again contended
that he was entitled to proceed for postconviction relief under Rule 36.4. The motion was
denied, and Ray has lodged an appeal in this court. Now before us are Ray’s petitions for
writ of certiorari to bring up a more extensive record and his motions for appointment of
counsel and an extension of brief time.
Because it is clear that Ray cannot prevail on appeal, the appeal is dismissed, and the
petitions and motions are moot. An appeal from an order that denied a petition for
postconviction relief will not be allowed to proceed when it is clear that the appellant could
not prevail. Justus v. State,
2012 Ark. 91
.
This court held in 1998 that Ray’s petition filed in 1993, whether considered under
Rule 36.4 or Rule 37.1 was not timely filed. As such, his motion filed in 2015 was also
untimely. Ray did not make a showing in his 2015 motion that there was a ground to permit
a belated 36.4 petition to be filed. Accordingly, Ray could not prevail on appeal from the
order that denied the 2015 motion.
Appeal dismissed; petitions and motions moot.
