MOTIONS FOR APPOINTMENT OF COUNSEL, FOR RELEASE ON PERSONAL
RECOGNIZANCE BOND, FOR EXTENSION OF BRIEF TIME, AND FOR COPY
OF RECORD [HOT SPRING COUNTY CIRCUIT COURT, NO. 30CV-15-107]
DISMISSED; MOTIONS MOOT.
1980, appellant Robert Heffernan and his accomplice, Joseph
Breault, were charged with abduction, rape, and capital
murder in the death of a fourteen-year-old girl. Both
Heffernan and Breault were found guilty of capital murder by
juries in separate trials. Both were sentenced to life
imprisonment without parole. This court affirmed
Heffernan's conviction on direct appeal in 1983.
Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666
(1983). Heffernan pursued federal habeas corpus relief, which
was denied. Heffernan v. Norris, 48 F.3d 331 (8th
Cir. 1995). In 2001, he also filed a habeas corpus petition
for relief in the trial court under Act 1780 of 2001 Acts of
Arkansas, codified at Arkansas Code Annotated sections
16-112-201 to -207 (Supp. 2003), seeking scientific testing
of certain evidence. The petition was denied, and we affirmed
the order. Heffernan v. State, CR 02- 239 (Ark. Jun.
13, 2002) (unpublished per curiam). Subsequently, Heffernan
again sought relief under the same statute. This court
affirmed the order denying the petition. Heffernan v.
State, 2011 Ark. 326, at 2.
2015, Heffernan filed a pro se petition for writ of habeas
corpus in the Hot Spring County Circuit Court-the circuit
court located in the county in which he is now incarcerated.
The petition was properly filed in that county because,
unless the petition is one filed in the trial court seeking
scientific testing, our statutes provide, "The writ
shall be directed to the person in whose custody the prisoner
is detained, and made returnable as soon as may be . . .
before the circuit judges of the county in which it may be
served, if either are within the county." Ark. Code Ann.
§ 16-112-105(b)(1) (Repl. 2006); Hundley v.
Hobbs, 2015 Ark. 70, at 3, 456 S.W.3d 755, 757,
reh'g denied, (Apr. 9, 2015). The circuit court
dismissed the petition, and Heffernan lodged an appeal from
the order in this court.
before us are Heffernan's pro se motions for appointment
of counsel, for release-on-personal-recognizance bond, for
extension of brief time, and for a copy of the record.
Because it is clear from the record that Heffernan could not
prevail on appeal, we dismiss the appeal, and the motions are
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.
Allen v. Kelley, 2016 Ark. 70, at 1-2, 482 S.W.3d
719, 721 (per curiam); Daniels v. Hobbs, 2011 Ark.
192 (per curiam).
circuit court's decision on a petition for writ of habeas
corpus will be upheld unless it is clearly erroneous.
Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d
364, 367. A decision 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 made. Id.
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 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). Unless the petitioner
in proceedings for a writ of habeas corpus can show that the
trial court lacked 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.
argued in his habeas petition that the judgment in his case
was invalid on its face and that the trial court lacked
jurisdiction on the ground that the record did not reflect
that the jury had found him guilty of either kidnapping or
rape, which were the underlying offenses to capital murder.
He further contended that the jury had not been given the
option of finding him guilty of a lesser-included offense.
Heffernan conceded that the State could argue that neither of
those assertions could be determined from the face of the
judgment, but he contended that he had appended to his
petition proof in the form of his affidavit, the verdict form
and judgment reflecting that he had been found guilty of
capital murder, and other documents from the trial record.
trial court correctly declined to grant relief on the
allegations contained in Heffernan's petition for writ of
habeas corpus because Heffernan did not make a showing of
probable cause to believe he is illegally detained. First,
the jury at his trial was instructed on capital murder and
the lesser-included offenses of first-degree murder,
kidnapping, and rape. The jury was informed that, if it
returned a finding of guilt on any of the offenses, there
would be a separate sentencing proceeding. The jury returned
a verdict of guilty on the charge of capital murder.
codefendant, Joseph Breault, argued on direct appeal
following his conviction that the trial court erred in not
requiring separate verdict forms to be completed by the jury
on rape and kidnapping in his case. We found no reversible
error in the trial court's failure to instruct the jury
to complete verdict forms on the underlying felonies of rape
and kidnapping because the jury, by implication, had to find
defendant guilty of either kidnapping or rape in order to
find him guilty of first-degree felony-murder. Breault v.
State, 280 Ark. 372, 375, 659 S.W.2d 176, 178 (1983).
Clearly, the issue of whether to require separate verdict
forms was one that could also have been raised, and settled,
at Heffernan's trial and on the record on direct appeal.
The issue was not sufficient to deprive the trial court of
jurisdiction or to render the judgment in Heffernan's
case invalid on its face. Assertions of mere trial error are
not a basis for the writ. Philyaw, 2015 Ark. 465, at
6, 477 S.W.3d at 507.
is the power of the court to hear and determine the subject
matter in controversy. Baker v. Norris, 369 Ark.
405, 413, 255 S.W.3d 466, 471 (2007). Heffernan did not
establish a lack of jurisdiction in his case. Furthermore,
proceedings for the writ are not intended to require an
extensive review of the record of the trial proceedings, and
the court's inquiry into the validity of the judgment is
limited to the face of the commitment order. Burgie v.
Hobbs, 2013 Ark. 360, at 4 (per curiam). As stated, if
there had been some irregularity in the verdict form or
judgment or an issue with instructing the jury on
lesser-included offenses, a writ of habeas corpus would not
issue to correct errors or irregularities that occurred at
trial, as the proper remedy in such a case is to raise the
issue at trial and on direct appeal. Meny v. Norris,
340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam); see also
Abernathy v. Norris, 2011 Ark. 335, at 3. A habeas
corpus proceeding does not afford a prisoner an opportunity
to retry his case, and it is not a substitute for direct
appeal or for pursuit of postconviction remedies. Friend
v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per
as Heffernan's petition did not state a ground for a writ
of habeas corpus, there was no merit to the petition, and
there could be no merit to an appeal from the order that
dismissed it. The clear lack of merit in the appeal ...