MOTION FOR BELATED APPEAL OF ORDER [BENTON COUNTY CIRCUIT
COURT, NO. 04CR-07-1642] HONORABLE BRAD KARREN, JUDGE
2009, petitioner Danny Ray Henington was found guilty by a
jury of the rape of his six-year-old step-granddaughter and
was sentenced to 432 months' imprisonment. The Arkansas
Court of Appeals affirmed. Henington v. State, 2010
Ark.App. 619, 378 S.W.3d 196.
subsequently filed in the trial court a petition for
postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1 (2009). The petition was denied, and this
court affirmed the order on April 26, 2012. Henington v.
State, 2012 Ark. 181, 403 S.W.3d 55.
December 21, 2015, Henington filed in the trial court a pro
se "memorandum in support for the writ of habeas
corpus." In the request for the writ, Henington alleged
the following: he had been denied effective assistance of
counsel at trial; the State committed a violation of
Brady v. Maryland, 373 U.S. 83 (1963), by allowing a
witness to testify at his trial when she was not on the
witness list and there had been no opportunity to interview
her before trial; the trial court failed to follow procedural
rules and permitted inadmissible evidence to be introduced at
trial; the trial court erred by allowing recorded video
evidence in the jury's deliberation room. The trial court
entered an order on March 15, 2016, in which it noted that
Henington had already raised claims under Rule 37.1 and that
the trial court had entered an order in 2015 holding that
Henington was not entitled to proceed again under the Rule.
The trial court further held that the claims in the request
for a writ of habeas corpus were not cognizable as grounds
for the writ.
filed a pro se notice of appeal on May 6, 2016, and tendered
the record to this court on June 21, 2016. Our clerk declined
to lodge the appeal because the notice of appeal designated
an order entered on March 23, 2016, which was not contained
in the tendered record, and because the notice of appeal
would not be timely even if the March 15, 2016 order that
denied the habeas petition was the order from which Henington
desired to take an appeal.
Arkansas Rule of Appellate Procedure-Criminal 2(a) (2015),
Henington was required to file a notice of appeal within
thirty days of the date of the entry of the March 15, 2016
order denying his petition for writ of habeas corpus.
Barber v. State, 2015 Ark. 267 (per curiam). Now
before us is Henington's pro se motion to proceed with a
belated appeal of the March 15, 2016 order.
petitioner has the right to appeal a ruling on a petition for
postconviction relief, which includes the denial of a
petition for writ of habeas corpus. Scott v. State,
281 Ark. 436, 664 S.W.2d 475 (1984). With that right,
however, goes the responsibility to file a timely notice of
appeal. However, we need not consider a petitioner's
reasons for not filing a timely notice of appeal when it is
clear from the record that he or she could not prevail on
appeal. Early v. Hobbs, 2015 Ark. 313, at 2, 467
S.W.3d 150, 151 (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 go forward when the appeal would be without
merit. Bunch v. Kelley, 2016 Ark. 58, at 2 (per
Henington filed his petition in the trial court that did not
have jurisdiction to have the writ, if issued, returned to
it, and he did not raise grounds in his petition on which the
writ could be granted. For those reasons, Henington clearly
could not prevail on appeal. We dismiss the motion for
belated appeal rather than deny it because the trial court
could not have had the writ returned to it regardless of the
merits of the petition. Johnson v. McClure, 228 Ark.
1081, 1081, 312 S.W.2d 347, 348 (1958) (holding a court
cannot issue and make returnable to it a writ of habeas
corpus if the petitioner is outside the court's
petition for writ of habeas corpus to effect the release of a
prisoner is properly addressed to the circuit court in the
county in which the prisoner is held in custody if the
prisoner is incarcerated within the State of Arkansas, unless
the petition is filed pursuant to Act 1780 of 2001 Acts of
Arkansas, codified at Arkansas Code Annotated sections
16-112-201 to -208 (Repl. 2006). Williams v. State,
2015 Ark. 448, 476 S.W.3d 154 (per curiam). A proceeding
under Act 1780 is properly commenced in the court in which
the conviction was entered. Ark. Code Ann. §
16-112-201(a). Henington did not raise grounds for relief
under the Act.
Henington filed his request for the writ, he was in custody
in Texas under an agreement between the Arkansas Department
of Correction ("ADC") and a correctional facility
there. Therefore, for purposes of habeas corpus, he was
detained in the custody of the ADC such that the circuit
court in the Arkansas county in which the ADC was
headquartered could issue a habeas writ to the director of
the ADC and make it returnable in that county. Hundley v.
Hobbs, 2015 Ark. 70, 456 S.W.3d 755, reh'g
denied (Apr. 9, 2015). A circuit court does not have
jurisdiction to release on a writ of habeas corpus a prisoner
not in custody in that court's jurisdiction. Pardue
v. State, 338 Ark. 606, 608, 999 S.W.2d 198, 199 (1999)
(per curiam); Mackey v. Lockhart, 307 Ark. 321, 819
S.W.2d 702 (1991).
even if Henington had filed his petition in the correct
jurisdiction, he did not state a ground for issuance of the
writ. A writ 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. Russell v.
Kelley, 2016 Ark. 224, at 2. Under our habeas statute, a
petitioner for the writ who is not proceeding 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.
of trial error, such as those raised by Henington, are not
cognizable in a habeas proceeding because they do not call
into question the jurisdiction of the trial court or the
facial validity of the judgment-and-commitment order.
McHaney v. Hobbs, 2012 Ark. 361 (per curiam)
(due-process allegations are not cognizable in a habeas
proceeding); Craig v. Hobbs, 2012 Ark. 218 (per
curiam) (challenges to the sufficiency of the evidence and
admissibility of evidence are not cognizable in a habeas
proceeding); Tryon v. Hobbs, 2011 Ark. 76 (per
curiam) (due process and prosecutorial misconduct are matters
of trial error and are not cognizable in a habeas
proceeding). Likewise, claims of ineffective assistance of
counsel are properly raised under Rule 37.1 and are not
cognizable in habeas proceedings. Lovett v. Kelley,
2016 Ark. 127, at 3, 487 S.W.3d 361, 363; McConaughy v.
Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). A habeas