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Mitchell v. Norris

April 6, 2007

CURTIS MITCHELL PETITIONER
v.
LARRY NORRIS, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



MEMORANDUM OPINION AND ORDER

The record reflects that in November of 2001, a Poinsett County, Arkansas, Circuit Court jury convicted petitioner Curtis Mitchell ("Mitchell") of aggravated robbery. He was sentenced for the offense to 192 months in the custody of respondent Larry Norris ("Norris"). Mitchell appealed the judgment of conviction to the Arkansas Court of Appeals. He advanced the following three claims on appeal: (1) the evidence to support his conviction was insufficient, (2) the trial judge erred by denying Mitchell's motion to suppress the identification of him by two witnesses, and (3) the trial judge erred by refusing to instruct the jury on the lesser-included offense of robbery. The state Court of Appeals found no reversible error and affirmed Mitchell's conviction. See Mitchell v. State, 2003 WL 1735545 (Ark.App. April 2, 2003).

On August 1, 2003, Mitchell filed a petition for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37 in Poinsett County, Arkansas, Circuit Court. The petition was denied in September of 2003 because it was not timely filed. Mitchell did not timely appeal the denial of his petition. After the period for filing a timely appeal had passed, he filed a motion for belated appeal with the Arkansas Supreme Court. The motion was denied on September 30, 2004, because the state Supreme Court concluded that he could not "be successful on appeal even if he were permitted to proceed [with the appeal]." See Mitchell v. State,2004 WL 2190280 at 1 (Ark.S.Ct. September 30, 2004). In denying the motion, the state Supreme Court additionally noted the following:

The petition in the trial court was not timely filed; and, as a result, petitioner was procedurally barred from proceeding with a petition for post-conviction relief. Criminal Procedure Rule 37.2(c) provides that all grounds for post-conviction relief must be raised in a petition under the rule filed within sixty days of the date the mandate was issued following affirmance of the judgment. The record in this matter reflects that [Mitchell] filed his petition challenging the judgment 101 days after the mandate of the court of appeals was issued.

The time limitations imposed in our post-conviction rule are jurisdictional in nature, and the circuit court may not grant relief on a untimely post-conviction petition. ... [Mitchell] filed an untimely petition; thus, the trial could not have granted the post-conviction relief sought, and petitioner could not prevail if permitted to proceed with an appeal.

See Id.

In December of 2005, Mitchell filed a petition for writ of habeas corpus in Lee County, Arkansas, Circuit Court. His petition was denied in June of 2005, and he appealed the denial to the state Supreme Court. During the appeal, he filed a motion for duplication of brief at public expense. The state Supreme Court used the occasion of that motion to dismiss his appeal in November of 2006, specifically finding as follows:

Now before us is [Mitchell's] pro se motion for duplication of brief at public expense. We need not consider this motion as it is apparent that [he] could not prevail in this appeal if it were permitted to go forward. Accordingly, we dismiss the appeal and hold the motion moot. This court has consistently held that an appeal from an order that denied a petition for post-conviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. ...

We will initially address two procedural matters. First, we note that [Mitchell] failed to include a copy of the judgment and commitment order in his addendum on appeal. It is well settled that the burden is on the petitioner in a habeascorpus petition to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeascorpus should issue. ... It is also appellant's duty to bring up a record sufficient to demonstrate error. ... We will, however, not require [him] to file a substituted addendum to cure this deficiency in conformance with Ark. Sup. Ct. R. 4-2(b), as it is clear on the record before us that [he] could not prevail. ...

Second, we note also that [Mitchell] failed to direct his petition to the proper party. Arkansas Code Annotated § 16-112-105(b)(1) (Repl.2006) requires that "[t]he writ shall be directed to the person in whose custody the prisoner is detained[.]" ... Such person having custody of the prisoner may be designated in the petition by either their name or office. ... Thus, by naming the State of Arkansas as the appellee, [he] failed to direct the writ to the custodian of his person.

On appeal, [Mitchell] maintains that the trial court erred when it denied his request for bail, and when it denied [Mitchell's] petition for writ of habeascorpus "without ruling on the merits of the allegations" alleged therein. However, in his prose petition filed in the trial court, [he] maintained that the trial court failed to bring [Mitchell] to trial within the speedy-trial time limitations set forth in Ark. R. Crim. P. 28.1, 28.2 and 28.3, and that he received ineffective assistance of counsel.

It is well-settled that the we will not consider an argument raised for the first time on appeal. ... Issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. ... [Mitchell] is therefore prohibited from raising new claims for the first time on appeal. As a result, this court cannot address [his] claim related to his entitlement to bail.

Also, claims raised below but not argued on appeal are abandoned. ... As [Mitchell's] substantive claims on appeal are entirely different than the claims made below, he abandoned the arguments made to the trial court regarding speedy-trial and ineffective assistance of counsel.

Finally, without citing any authority, [Mitchell] claims on appeal that the trial court failed to address all the issues presented to the trial court. In essence, [he] alleges that the trial court erred when it issued an order that did not contain findings of fact and conclusions of law, specifically addressing both bases for [his] petition. Criminal Procedure Rule 37.3(a) requires a circuit court to make written findings and to specify any parts of the record relied upon if the court denies a Rule 37.1 petition without first holding a hearing. In contrast, the statutes governing petitions for writ of habeascorpus proceedings contain no ...


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