APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. 60CR-99-1834. HONORABLE HERBERT T. WRIGHT, JR., JUDGE.
Willie Hutcherson, Pro se, appellant.
Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.
In 2000, appellant Willie Hutcherson was found guilty by a jury of four counts of aggravated robbery, three counts of misdemeanor theft of property, and one count of felony theft of property. The facts giving rise to the judgments are as follows: On April 2, 1999, a clerk was robbed at a Conoco gas station on Baseline Road in Little Rock. The clerk testified at appellant's trial that appellant was the person who had robbed her. On the morning of April 3, 1999, a clerk at a Texaco station on Dixon Road was robbed by a man, whom the clerk identified as appellant. On the night of April 3, 1999, a clerk was robbed at a Texaco station on Ninth Street. The clerk identified appellant at trial and in a pretrial photo spread as the robber. On the afternoon of April 5, 1999, a clerk was robbed at a liquor store on Dixon Road. The clerk identified appellant at trial as the person who had robbed him. Appellant was sentenced as a habitual offender to an aggregate term of 2880 months' imprisonment, which included 60 months' imprisonment for possession of a firearm by a felon. The Arkansas Court of Appeals affirmed. Hutcherson v. State,
74 Ark.App. 72, 47 S.W.3d 267 (2001).
In 2011, appellant filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2006). Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus can issue based on new scientific evidence proving a person actually innocent of the offense for which he was convicted. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006); Ark. Code Ann. § 16-112-201, Biggs v. State, 2014 Ark. 114 (per curiam); Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam). The petition was denied, and appellant appealed to this court. The appeal was dismissed because it was clear that appellant could not prevail if the appeal were allowed to proceed. Hutcherson v. State, 2013 Ark. 104 (per curiam).
On May 9, 2013, appellant filed in the trial court a motion under section 16-112-202 seeking fingerprint testing, DNA testing, and further examination of a videotape showing the robbery of the Texaco station on Ninth Street. On May 30, 2013, he filed a " motion for new trial," requesting that the videotape of the robbery of the Texaco station on Ninth Street be tested under section 16-112-208 and again requesting the fingerprint and DNA testing sought in the May 9, 2013 motion. The trial court denied both pleadings in one order on the ground that the two pleadings were successive habeas pleadings and subject to denial under section 16-112-205(d). Appellant brings this appeal.
Section 16-112-205(d) provides that a trial court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition if the issues raised in it have previously been decided by the Arkansas Court of Appeals or the Arkansas Supreme Court in the same case. The generally applicable standard for review of an order denying postconviction relief dictates that this court does not reverse unless the circuit court's findings are clearly erroneous, although issues concerning statutory interpretation are reviewed de novo. Cooper v. State, 2013 Ark. 180 (per curiam) (citing Echols v. State, 2010 Ark. 417, 373 S.W.3d 892). An abuse of discretion standard applies when the statute allows the trial court to exercise discretion. Cooper, 2013 Ark. 180; see Isom v. State, 2010 Ark. 496, 372 S.W.3d 809. A finding is clearly erroneous when, although there is evidence to support it, the appellate court,
after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Cooper, 2013 Ark. 180; Pitts v. State, 2011 Ark. 322 (per curiam). An abuse of discretion occurs when the circuit court acts arbitrarily or groundlessly. Guy v. State, 2011 Ark. 305 (per curiam).
In his petition filed under the statute in 2011, appellant contended that testing of the videotape that showed the robbery of the Texaco station on Ninth Street would reveal that he was not the robber. He did not, however, state in the 2011 petition that there was any new technology that would result in a ...