FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-16-9]
HONORABLE JODI RAINES DENNIS, JUDGE
Preston Clayton, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
2010, appellant Robert Preston Clayton was found guilty by a
jury of rape and second-degree sexual assault of his minor
daughter. He was sentenced as a habitual offender to an
aggregate term of 960 months' imprisonment. The Arkansas
Court of Appeals affirmed. Clayton v. State, 2012
Ark.App. 199. Clayton subsequently filed in the trial court a
pro se petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.1 (2010). The petition
was denied, and Clayton appealed to this court from the
order. We dismissed the appeal because it was clear from the
record that Clayton could not prevail. Clayton v.
State, 2013 Ark. 453 (per curiam).
February 1, 2016, Clayton, who is incarcerated in a unit of
the Arkansas Department of Correction located in Lincoln
County, filed a pro se petition for writ of habeas corpus in
the Lincoln County Circuit Court seeking to have the judgment
vacated or to have an order entered for him to be resentenced
by the trial court. The circuit court dismissed the petition
on the ground that Clayton had not stated a ground for the
writ. Clayton, who remains incarcerated in Lincoln County,
brings this appeal.
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 trial 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.
2016). 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.
arguments in this appeal mirror those in the habeas petition.
He contends that he was denied due process of law because the
evidence was insufficient to sustain the judgment and that
the victim is now ready to "tell the truth." He
further alleges that his Eighth Amendment right to be free of
cruel and unusual punishment was violated by the length of
his term of imprisonment. Clayton also argues in his brief
that the circuit court erred by not holding an evidentiary
hearing on the claims in the habeas petition.
respect to Clayton's claim that the evidence was not
sufficient to sustain the judgment of conviction, the
allegation does not state a ground for relief. Mitchell
v. Kelley, 2016 Ark. 326 (per curiam). In a habeas
proceeding that is not filed under Act 1780, challenges to
the sufficiency of the evidence, which are due-process
claims, are not cognizable. Gardner v. Hobbs, 2014
Ark. 346, 439 S.W.3d 663 (per curiam). Likewise, an attack on
the credibility of Clayton's victim was not a ground for
the writ. See Jones v. Hobbs, 2015 Ark. 251, at 2-3
(per curiam) (holding that attacks on the credibility of the
witnesses at trial do not provide grounds to grant the writ).
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 proceeding for postconviction relief.
Philyaw, 2015 Ark. 465, 477 S.W.3d 503.
based his Eighth Amendment argument on the length of his
sentence and his allegation that there were factors, such as
his history of psychological problems and substance abuse
that made his culpability questionable and mitigated against
the length of the sentence. The Eighth Amendment claim is
outside the scope of a habeas proceeding because the claim
does not implicate the jurisdiction of the trial court or the
facial validity of the judgment. See Grissom v.
Hobbs, 2015 Ark. 449, 476 S.W.3d 160 (per curiam),
cert. denied, Grissom v. Kelley, No.
16-5146, 2016 WL 3670848 (U.S. Oct. 3, 2016).
did not contend that the sentences imposed on him were
outside the statutory limits for the offenses or that he was
a minor when he committed the offenses; he merely argued that
mitigating factors should have been considered to result in a
lesser sentence. Where the law does not authorize the
particular sentence pronounced by a trial court, the sentence
is unauthorized and illegal. See State v. Joslin,
364 Ark. 545, 222 S.W.3d 168 (2006). However, the mere fact
that a sentence, which is within the statutory range for the
offense, does not satisfy a petitioner does not entitle a
petitioner to release on a writ of habeas corpus. See
Clem v. State, 2011 Ark. 311 (per curiam). Here,
Clayton's habitual-offender sentences of 600 months'
imprisonment for rape and 360 months' for second-degree
sexual assault were within statutory range. See Ark.
Code Ann. § 5-14-103(c) (Repl. 2006) (rape is a Class Y
felony); Ark. Code Ann. § 5-14-125(b)(1) (second-degree
sexual assault is a Class B felony); Ark. Code Ann. §
5-4-401(a)(1) (a sentence for a Class Y felony may range from
120 months to 480 months or life); Ark. Code Ann. §
5-4-401(a)(3) (a sentence for a Class B felony may range from
60 months' imprisonment to 240 months' imprisonment).
Pursuant to Arkansas Code Annotated section 5-4-403(a), the
trial court had authority to exercise its discretion and
order that the sentences imposed on Clayton be served
consecutively. This court has previously rejected the
argument that imposition of consecutive sentences is cruel
and unusual punishment. See Thompson v. State, 280
Ark. 265, 658 S.W.2d 350 (1983) (holding that the cumulative
effect of consecutive sentences does not make punishment
cruel and unusual); see also Thompson v. State, 2013
Ark. 179, at 5-6 (per curiam) (The mere fact that sentences
were imposed consecutively did not serve to offend the Eighth
Amendment prohibition against cruel and unusual punishment.).
as to Clayton's argument that the trial court erred by
not holding a hearing on his habeas petition, we find no
error. We have held that a hearing on a petition for writ of
habeas corpus is not required if the petition does not allege
either of the bases for relief proper in a habeas proceeding;
and, even if a cognizable claim is made, the writ will not be
issued unless probable cause is shown for the writ to be
issued. Philyaw, 2015 Ark. 465, at 4, 477 S.W.3d
503, 506. If a 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). The claims Clayton raised in
his petition ...