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Smith v. Hobbs

Supreme Court of Arkansas

July 23, 2015

OLAJUWON SMITH APPELLANT
v.
RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

Page 270

CHICOT COUNTY CIRCUIT COURT, NO. 09CV-14-41. HONORABLE DON GLOVER, JUDGE.

OPINION

Page 271

PRO SE MOTIONS FOR COPY OF PRETRIAL PROCEEDING AND DOCKET SHEET AND FOR EXTENSION OF TIME TO FILE BRIEF AND TO SUPPLEMENT RECORD

PER CURIAM

On November 4, 2013, judgment was entered reflecting that appellant Olajuwon Smith had entered pleas of guilty to multiple felony offenses. He was sentenced to an aggregate term of 480 months' imprisonment. Imposition of an additional 120 months' imprisonment was suspended. Smith subsequently filed in the trial court a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013), which was dismissed on the ground that it did not comply with the Rule. Smith then filed a second such petition, which the court denied. We affirmed the order. Smith v. State, 2015 Ark. 23, 454 S.W.3d 219 (per curiam).

In 2014, Smith filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus seeking release from custody. The petition was dismissed on November 24, 2014. On December 12, 2014, before the time for filing a notice of appeal had elapsed, Smith filed a motion asking that the order be modified and vacated. The motion was

Page 272

denied on February 9, 2015, and Smith timely filed a notice of appeal in which he designated that the appeal was being taken from both the November 24, 2014 and the February 9, 2015 orders. Smith timely lodged an appeal from the orders in this court.

Now before us are Smith's pro se motions for a copy of pretrial proceedings and docket sheet, for an extension of time to file his brief-in-chief, and for leave to supplement the record. In the motion to supplement the record, Smith requests permission to include in the appeal record a personal affidavit in which he asserts that a pretrial hearing was held on October 14, 2013, and that, following that hearing, the circuit court ordered that he wear a " kidney belt" during trial.[1] We deny Smith's request to include the affidavit in the appeal record, and, to the extent that Smith may seek permission to supplement the record to include the October 14, 2013 pretrial hearing, we deny that request as well. The affidavit was not before the circuit court for consideration when it denied Smith's request for habeas relief. Moreover, the October 14, 2013 pretrial hearing is not referenced in either of the circuit court's orders, which are the subject of the instant appeal. This court has long and consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony or consider anything outside of the record below. See, e.g., Darrough v. State, 2013 Ark. 28 (per curiam).

Because it is clear from the record that Smith could not prevail if the appeal were permitted to go forward, we dismiss the appeal and find his remaining motion for copies and for extension of time moot. Sims v. State, 2015 Ark. 41 (per curiam). An appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to proceed when the appeal is without merit. Robinson v. Felts, 2015 Ark. 174 (per curiam).

A circuit court's denial of habeas relief will not be reversed unless the court's findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367. Here, the circuit court correctly determined that Smith did not allege grounds in his petition or the motion for modification of order on which the writ could be granted.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Fields v. Hobbs, 2013 Ark. 416, at 5. The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). The burden is on the petitioner in a habeas corpus 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 should issue. Fields, 2013 Ark. 416.

Smith raised the following claims as grounds for a writ of habeas corpus: he was denied his right to a speedy trial; the search warrant and the arrest warrant in his case were illegally obtained by means of false information and ...


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