MOTION TO FILE BELATED BRIEF. LEE COUNTY CIRCUIT COURT, NO.
39CV-15-24. HONORABLE CHRISTOPHER W. MORLEDGE, JUDGE.
1981, appellant David Lee Allen was found guilty of
aggravated robbery by a Crittenden County jury. He was
sentenced to life imprisonment. Allen appealed, and this
court reversed and remanded for a new trial. Allen v.
State, 277 Ark. 380, 641 S.W.2d 710 (1982). A second
trial resulted in a hung jury, and, at a third trial, Allen
was again found guilty and sentenced to life imprisonment for
aggravated robbery and to a concurrent six-year sentence for
possession of a firearm by a felon. Allen appealed, and this
court affirmed. Allen v. State, 281 Ark. 1, 660
S.W.2d 922 (1983).
March 20, 2015, Allen filed a pro se petition for writ of
habeas corpus in the Lee County Circuit Court, the county in
which he is incarcerated. On April 23, 2015, the circuit
court entered an order dismissing Allen's petition for
writ of habeas corpus. On that same day, Allen filed a notice
of appeal from the order, and, on May 5, 2015, Allen filed a
motion for clarification and reconsideration. On May 20,
2015, the circuit court entered a supplemental order stating
that the court's previous denial of relief was based on
the face of the pleadings and that Allen failed to establish
cause to move forward. Allen lodged an appeal from the order
in this court.
before us is Allen's motion to file a belated brief.
Because it is clear from the record that Allen could not
prevail on appeal, we dismiss the appeal, and the motion is
therefore moot. An appeal from an order that denied a
petition for postconviction relief, including a petition for
writ of habeas corpus, will not be permitted to go forward
when it is clear that the appellant could not prevail.
Daniels v. Hobbs, 2011 Ark. 192 (per curiam).
circuit court's denial of habeas relief will not be
reversed unless the court's findings are clearly
erroneous. A finding is clearly erroneous when, although
there is evidence to support it, the appellate court after
reviewing the entire evidence is left with a definite and
firm conviction that a mistake has been committed. Hobbs
v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367.
Here, the circuit court correctly determined that Allen did
not allege grounds in his petition on which the writ could be
of habeas corpus is proper when a judgment of conviction is
invalid on its face or when a trial court lacked jurisdiction
over the cause. Fields v. Hobbs, 2013 Ark. 416. The
burden is on the petitioner in a habeas-corpus petition to
establish that the trial court lacked jurisdiction or that
the judgment-and-commitment order was invalid on its face;
otherwise, there is no basis for a finding that a writ of
habeas corpus should issue. Young v. Norris, 365
Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner
must plead either the facial invalidity of the
judgment-and-commitment order or the lack of jurisdiction and
make a " showing by affidavit or other evidence [of]
probable cause to believe" that he is illegally
detained. Id. at 221, 226 S.W.3d at 798.
petition for writ of habeas corpus, Allen argued that trial
counsel was ineffective for advising him to not accept a plea
offer, which prejudiced him because he " ha[d] to stand
trial" and because his sentence was more severe than the
one proposed in the plea offer and that trial counsel was
ineffective for not presenting mitigating factors, including
his complete social history, his troubled childhood, his
" slow schooling," and his abuse of drugs and
alcohol. Allen's claims that his trial
counsel was ineffective are not cognizable in a habeas
proceeding. Woodson v. Hobbs, 2015 Ark. 304, 467
S.W.3d 147 (per curiam) (citing McConaughy v.
Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992)).
reference to Graham v. Florida, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010), Allen claimed that,
although he was twenty-one years old, he was still a juvenile
with diminished culpability and should not be subject to a
sentence of life imprisonment without parole just as an
eighteen year old cannot be so sentenced for a nonhomicide
offense, as it violates the Eighth Amendment prohibition
against cruel and unusual punishment and the Equal Protection
Clause of the United States Constitution. Notably, Allen made
no claim, nor does the record reflect, that he was, in fact,
a juvenile at the time of crimes. He essentially claimed he
should be treated the same as a juvenile because there is not
any real difference between someone who is eighteen years old
and someone who is twenty-one years old. To the extent
Allen's claims challenge the validity of his sentence of
life imprisonment based on his age, Graham "
does not mandate a resentencing procedure that takes into
account a juvenile offender's age." Hobbs v.
Turner, 2014 Ark. 19, at 11, 431 S.W.3d 283, 289. Cases
such as Graham and its progeny clearly state that a
juvenile is considered a person younger than eighteen at the
time the offense was committed. See Hobbs v.
Hodge, 2015 Ark. 207, 461 S.W.3d 704. Because
Graham is inapplicable, Allen made no convincing
claim that his sentence is invalid or void, and he failed to
demonstrate that his sentence exceeded the statutory maximum.
Grissom, 2013 Ark. 417.
further argued that his trial counsel's use of preemptory
challenges to exclude white jurors and the State's use of
preemptory challenges to exclude black jurors violated his
right to a trial by a fair and impartial jury. However, Allen
failed to allege that trial counsel's and the State's
use of preemptory challenges somehow invalidated the
judgment-and-commitment order on its face or implicated the
trial court's jurisdiction. A habeas corpus proceeding
does not afford a prisoner an opportunity to retry his case
or argue issues that were, or could have been, settled at
trial or on the record on direct appeal from the judgment.
Tucker v. Hobbs, 2014 Ark. 449 (per curiam); see
also Meny v. Norris, 340 Ark. 418, 13 S.W.3d
petitioner in a habeas proceeding fails to raise a claim
within the purview of a habeas action, the petitioner fails
to meet his burden of demonstrating a basis for a writ of
habeas corpus to issue. Benton v. State, 2013 Ark.
385 (per curiam). Allen clearly did not meet his burden;
therefore, he could not prevail on appeal. See
Quezada v. Hobbs, 2014 Ark. 396, 441 S.W.3d 910 (per
dismissed; motion moot.