MOTIONS FOR EXTENSION OF TIME AND FOR EN BANC REVIEW [LEE
COUNTY CIRCUIT COURT, NO. 39CV-16-83] HONORABLE RICHARD L.
DISMISSED; MOTIONS MOOT.
Wesley Jefferson is an inmate incarcerated in the Arkansas
Department of Correction in a facility located in Lee
County. He lodged in this court an appeal of an
order denying his pro se petition for writ of habeas corpus
filed in the circuit court of that county. Jefferson has
filed two motions requesting an extension of time in which to
file his brief and seeking en banc review. After filing the
motions, Jefferson tendered his brief. We dismiss the appeal,
and the motions are therefore moot.
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 where the
appeal is without merit. Early v. Hobbs, 2015 Ark.
313, 467 S.W.3d 150 (per curiam). This court will dismiss the
appeal if it is clear from the record that the appellant did
not allege a basis on which the circuit court could properly
grant a writ of habeas corpus, and the appellant therefore
could not prevail on appeal. Robinson v. Felts, 2015
Ark. 174 (per curiam). Jefferson did not allege a basis for
the circuit court to grant the writ, and we accordingly
dismiss the appeal.
court affirmed the judgment reflecting Jefferson's
convictions for capital murder, aggravated robbery, theft of
property, and fleeing that Jefferson challenged in the habeas
proceeding. Jefferson v. State, 372 Ark. 307, 276
S.W.3d 214 (2008). In his habeas petition, Jefferson alleged
that his sentence was illegal, that the evidence against him
was insufficient, and that he was actually innocent of the
charges. In support of these claims, Jefferson raised a
number of issues challenging due process and the procedure
during his trial, including allegations that the information
was improperly amended to change the nature or degree of the
murder charge, that a motion to quash the capital-murder
charge should have been granted, that there were a number of
other trial errors during the proceedings, that his trial
counsel was ineffective on a number of bases, that there was
prosecutorial misconduct in that evidence was suppressed and
the prosecutor made inappropriate comments during the opening
statement and closing argument, that the judge demonstrated
bias, and that he was denied appellate review because this
court did not review the entire record on appeal.
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
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.
alleged his actual innocence, but he did not invoke Act 1780.
Proceedings under Act 1780 must be filed in the court in
which the conviction was entered. Ark. Code Ann. §
16-112-201(a). Jefferson was convicted in the St. Francis
County Circuit Court, and jurisdiction for proceedings under
Act 1780 would not lie in the Lee County Circuit Court. 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).
Jefferson's claims in the petition that he was innocent
and that the evidence was insufficient were not within the
purview of the habeas proceeding.
claims of ineffective assistance, prosecutorial misconduct,
trial error, and judicial bias were also not within the
purview of our habeas statute.
Ineffective-assistance-of-counsel claims are not cognizable
in habeas proceedings. McConaughy v. Lockhart, 310
Ark. 686, 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). 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.
Murphy v. State, 2013 Ark. 155 (per curiam).
assertions of trial error such as Jefferson made concerning
the denial of the motion to quash implicate the facial
validity of the judgment or the jurisdiction of the trial
court, and those claims are also not cognizable in
proceedings for the writ. Id. A habeas proceeding
does not afford a prisoner an opportunity to retry his case,
and it is not a substitute for direct appeal or
postconviction relief. Philyaw, 2015 Ark. 465, 477
S.W.3d 503. Because Jefferson failed to challenge the facial
validity of the judgment or the court's jurisdiction, his
claims of prosecutorial misconduct also do not fall within
the parameters of the remedy. See Grissom v. Hobbs,
2015 Ark. 449, 476 S.W.3d 160 (per curiam). Claims of
judicial bias are likewise assertions of trial error that do
not implicate the facial validity of the judgment or the
jurisdiction of the trial court. Maxwell v. Hobbs,
2013 Ark. 307 (per curiam).
addition to Jefferson's allegations of trial error on the
denial of the motion to quash, he also alleged that amendment
of the information was invalid and changed the nature and
degree of the charge. Jefferson contended that the
information improperly changed the basis for the
capital-murder charge because the original information
alleged that Jefferson caused a death "under
circumstances manifesting extreme indifference to the value
of human life while committing a Burglary and Theft of
Property, the death being caused with premeditation and
deliberate purpose" while the amended information
alleged that Jefferson caused a death "in the course of
and in furtherance of a felony or immediate flight from the
felony of Aggravated Robbery."
of a defective information that raise a jurisdictional issue,
such as those that raise a claim of an illegal sentence, are
cognizable in a habeas proceeding, but allegations of a
defective information are not generally considered to be
jurisdictional and are treated as trial error.
Philyaw, 2015 Ark. 465, 477 S.W.3d 503. This court
has held that a claim such as Jefferson makes here does not
challenge the personal or subject-matter jurisdiction of the
court and is not cognizable in a habeas proceeding.
Sanders v. Straughn, 2014 Ark. 312, 439 S.W.3d 1
(per curiam). As in Sanders, because the nature of
the offense remained the same and the amendment changed only
the manner of the alleged commission of the crime, Jefferson
failed to state a claim for habeas relief.
final allegation offered in support of his claim of an
illegal sentence was that this court performed an inadequate
review on appeal because it failed to fully review the record
available on appeal. Again, this claim is not one that
challenges either the facial validity of the judgment or the
trial court's jurisdiction to impose the sentence.
Jefferson instead appears to contend that this court had an
obligation to conduct a review of the entire record on appeal
for any error rather than the review of adverse decisions
mandated by Arkansas Supreme Court Rule 4-3 (2008). Jefferson
therefore failed to allege a basis for the circuit court to
grant the writ. Moreover, even if the issue was one that fell
within the perimeters of habeas review, Jefferson's
position on what is required for an appropriate review is at
odds with our ...