APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT [NO. 09CV-16-70]
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
Deontae Antonio Fulton, pro se appellant.
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
2015, appellant Deontae Antonio Fulton was found guilty by a
jury in the Pulaski County Circuit Court of first-degree
murder and sentenced to 420 months' imprisonment. On
direct appeal of the judgment, Fulton argued that the
evidence was insufficient to sustain the judgment because
Atarius Bishop, a witness for the State, was not credible and
because he was an accomplice whose testimony was not
corroborated. The Arkansas Court of Appeals affirmed.
Fulton v. State, 2016 Ark.App. 28.
2016, Fulton, who is incarcerated at a unit of the Arkansas
Department of Correction located in Chicot County, filed a
pro se petition for writ of habeas corpus in the Chicot
County Circuit Court. In the petition, Fulton contended that
the trial court erred in finding that the evidence was
sufficient to sustain the judgment. He argued, as he had done
on direct appeal, that Atarius Bishop's testimony had not
supported the guilty verdict. He also named other witnesses
for the State that he contended gave testimony that did not
support the verdict. He concluded his petition with claims
that he was not afforded effective assistance of counsel at
circuit court denied the petition without a hearing on the
ground that Fulton had not stated a ground for the writ.
Fulton, who remains incarcerated in Chicot County, brings
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. Smith v.
Kelley, 2016 Ark. 307, at 2.
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. Russell v. Kelley, 2016 Ark. 224;
Fields v. Hobbs, 2013 Ark. 416.
concedes in his brief both that the Pulaski County Circuit
Court had jurisdiction in his case and that the sufficiency
of the evidence to sustain a judgment is not a ground for the
writ. He argues, nevertheless, that the writ should have been
issued by the Chicot County Circuit Court to effect his
release from custody on the grounds that the judgment was
rendered invalid because the evidence was insufficient to
support the verdict and because there were due-process
violations at his trial. He further alleges that his trial
counsel was ineffective. Fulton asserts that a miscarriage of
justice will occur if this court does not reverse the circuit
court's decision to deny the habeas petition.
affirm the circuit court order because Fulton did not state a
ground on which a writ of habeas corpus could be issued.
Fulton offered nothing in his petition to demonstrate that
the trial court did not have jurisdiction in his case, and he
acknowledges that the issue of whether the evidence adduced
at trial was sufficient to sustain the judgment is not a
ground for the writ. This court has repeatedly held that
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 does not provide
an opportunity to reargue issues that have been, or could
have been, settled on direct appeal. Allen v.
Kelley, 2015 Ark. 490 (per curiam). As to the facial
legality of the sentence imposed, Fulton did not contend that
the sentence was not within the statutory range for the
degree that Fulton challenged in his petition the correctness
of the rulings made by the trial court at his trial, mere
trial error would not act to deprive a court of jurisdiction
to enter a legal judgment. Thompson v. State, 2016
Ark. 380, at 4 (per curiam), reh'g denied (Dec.
8, 2016); Willis v. Hobbs, 2011 Ark. 509, at 2 (per
curiam). Any issues concerning due-process claims or the
admissibility of evidence could have been raised by Fulton at
trial and are not within the purview of the writ. Watson
v. State, 2014 Ark. 147 (per curiam) (holding that
claims of a denial of petitioner's due-process rights and
erroneous admission of evidence were allegations of trial
error that were not grounds for habeas corpus relief).
claims of ineffective assistance of counsel, which are
properly raised under Arkansas Rule of Criminal Procedure
37.1 (2016), are not cognizable in habeas proceedings.
McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166
(1992). Such allegations must be raised under the Rule, and a
habeas proceeding is not a substitute for filing a timely
petition for postconviction relief. Philyaw, 2015
Ark. 465, 477 S.W.3d 503.
Fulton asserts in his brief that he was entitled to a hearing
on his habeas petition. We find no error. This court has 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. Id. at 4,
477 S.W.3d at 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 circuit court was
not obligated to conduct a hearing on ...