APPEAL FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CV-15-119],
HONORABLE RICHARD L. PROCTOR, JUDGE
Mitchell, pro se appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee
Denver Mitchell filed a pro se petition for writ of habeas
corpus in the circuit court of the county where he was
incarcerated,  and, after the circuit court denied the
petition, Mitchell lodged this appeal. Mitchell failed to
raise a claim in the petition that was within the purview of
a habeas action, and we therefore affirm.
was convicted of first-degree murder in the Greene County
Circuit Court, and he appealed the judgment. This court
affirmed. Mitchell v. State, 314 Ark. 343, 862
S.W.2d 254 (1993). After Mitchell sought postconviction
relief under Arkansas Rule of Criminal Procedure 37.1 (1995),
his petition was denied, and this court granted a motion to
proceed with a belated appeal of the order. Mitchell v.
State, CR-95-834 (Ark. Oct. 2, 1995) (unpublished per
curiam). That appeal was dismissed, however, when this court
granted the State's motion seeking a dismissal on the
basis of a deficient abstract. Mitchell v. State,
CR-95-834 (Ark. Dec. 11, 1995) (unpublished per curiam).
habeas petition, Mitchell raised three grounds for relief. In
the first two grounds, Mitchell asserted that the judgment
was facially invalid because the attorney representing him at
trial and on appeal was ineffective. In the third ground,
Mitchell contended that the judgment was invalid because he
is actually innocent. In the order denying the petition, the
circuit court found that all of Mitchell's claims were
grounded in ineffective assistance of counsel and that
ineffective-assistance claims are not cognizable in habeas
proceedings. On appeal, Mitchell contends that he
demonstrated probable cause to establish the facial
invalidity of his commitment, that his attachments to the
habeas petition showed his actual innocence of the murder,
and that the circuit court failed to address the issues in
his second and third grounds for habeas relief.
circuit court's grant or denial of habeas relief will not
be reversed unless the court's findings are clearly
erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434
S.W.3d 364. A finding is clearly erroneous when, although
there is evidence to support it, the appellate court is left,
after reviewing the entire evidence, with the definite and
firm conviction that a mistake has been committed.
of habeas corpus is proper when a judgment of conviction is
invalid on its face or when a circuit court lacks
jurisdiction over the cause. Philyaw v. Kelley, 2015
Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for
the writ who does not allege his actual innocence and proceed
under Act 1780 of 2001 Acts of Arkansas must plead either the
facial invalidity of the judgment or the lack of jurisdiction
by the trial court 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). Unless the petitioner in proceedings for a writ of
habeas corpus can show that the trial court lacked
subject-matter jurisdiction or that the commitment was
invalid on its face, there is no basis for a finding that a
writ of habeas corpus should issue. Fields v. Hobbs,
2013 Ark. 416.
did not invoke Act 1780, and proceedings under Act 1780 must
be filed in the court in which the conviction was entered.
Ark. Code Ann. § 16-112-201(a). In habeas proceedings
not filed under Act 1780, claims of actual innocence, which
are effectively challenges to the sufficiency of the
evidence, are due process claims that are not cognizable in
habeas proceedings. Gardner v. Hobbs, 2014 Ark. 346,
439 S.W.3d 663 (per curiam). A habeas proceeding does not
afford a prisoner an opportunity to retry his or her case,
and it is not a substitute for direct appeal or
postconviction relief. Philyaw, 2015 Ark. 465, 477
S.W.3d 503. Mitchell's claims of a demonstration that he
was innocent in the attachments to the habeas petition are
therefore of no avail. To the extent that the circuit court
may not have addressed any of Mitchell's arguments in his
third ground for relief because those claims were based on
his innocence rather than ineffective assistance of counsel,
Mitchell's claims nevertheless were not ones within the
purview of the proceedings.
Mitchell's third point on appeal, the circuit court did
address Mitchell's claims in both the first and second
grounds for relief in the petition because, to the extent
those arguments were not based on his claims of innocence,
both grounds were based on claims of ineffective assistance.
Ineffective-assistance-of-counsel claims are also not
cognizable in habeas proceedings. McConaughy v.
Lockhart, 310 Ark. 585, 840 S.W.2d 166 (1992).
Ineffective assistance is the type of factual issue that
requires the kind of inquiry well beyond the facial validity
of the commitment. See Friend v. Norris, 364 Ark.
315, 219 S.W.3d 123 (2005) (per curiam).
contends on appeal, as he did in the habeas petition, that he
was entitled to counsel for his Rule 37 proceedings under the
United States Supreme Court's holdings in Martinez v.
Ryan, 132 S.Ct. 1309 (2012) and Trevino v.
Thaler, 133 S.Ct. 1911 (2013), and he weaves into all of
his claims an argument that, because he was not appointed
counsel for those proceedings, he must be allowed to pursue
those claims in habeas proceedings. This court has rejected,
however, the argument that Martinez and
Trevino require appointment of counsel. Mancia
v. State, 2015 Ark. 115, 459 S.W.3d 259. Therefore, the
mere fact that Mitchell was not represented by counsel during
his Rule 37 proceedings does not render the judgment invalid.
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 the writ to
issue. Allen v. Kelley, 2016 Ark. 70, 482 S.W.3d 719
(per curiam). None of the claims Mitchell raised, whether
based on ineffective assistance or on his actual innocence,