MOTION TO DISMISS APPEAL AND APPELLANT'S PRO SE MOTION
FOR BELATED APPEAL [JEFFERSON COUNTY CIRCUIT COURT, NO.
35CV-16-513] HONORABLE JODI RAINES DENNIS, JUDGE
Martez Barber, pro se appellant.
Rutledge, Att'y Gen., by: David R. Raupp, Sr. Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
2013, appellant Tommy Martez Barber entered a plea of guilty
to murder in the first degree and was sentenced to 480
months' imprisonment. In 2016, Barber, who was
incarcerated in Jefferson County, filed in the Jefferson
County Circuit Court a pro se petition for writ of habeas
corpus, seeking release from custody. On October 5, 2016, an
order was entered dismissing the petition because Barber did
not state a basis for issuance of the writ.
November 10, 2016, Barber lodged an appeal in this court from
the order. He was informed by letter from the Office of the
Criminal Justice Coordinator that his brief was due to be
filed no later than December 20, 2016. Our clerk also mailed
a copy of the briefing schedule to Barber on November 10,
2016. Neither the letter from the coordinator nor the letter
from the clerk was returned by the postal service.
did not file a brief or file a motion for extension of brief
time, and, on March 6, 2017, the State filed the motion that
is now before us to dismiss the appeal on the grounds that
the appellant had failed to submit a brief or otherwise take
any action to pursue the appeal. On March 20, 2017, Barber
filed a pro se motion "to file a belated appeal, "
which we treat as a motion to file a belated brief.
of a party in an appeal to file a brief may constitute
abandonment of the appeal. See Hogue v. Hogue, 262
Ark. 767, 561 S.W.2d 299 (1978). Arkansas Supreme Court Rule
4-5 (2016) provides that a civil appeal may be dismissed if a
brief is not timely filed. Barber urges this court to permit
him to proceed with the appeal despite his failure to timely
file a brief because he never received notice that the appeal
had been lodged and a briefing schedule set for the appeal.
He contends that the mail service where he is incarcerated is
unreliable and his mail could have been delivered to another
inmate. He also argues that he should be permitted to proceed
because the appeal is meritorious.
grant the State's motion to dismiss the appeal. A
litigant's failure to act in accordance with the
prevailing rules of procedure will not be excused solely on
the grounds that he was acting pro se, and the fact of
incarceration does not, in and of itself, excuse a prisoner
from complying with the rules. See Ottens v. State,
316 Ark. 1, 871 S.W.2d 329 (1994) (noting that pro se
litigants must conform to the rules of procedure).
Barber's conclusory claim that his mail may have gone to
another inmate does not constitute good cause to permit the
appeal to go forward. If an unsubstantiated allegation of
failure of the mail service were held to be good cause for
the failure to comport with procedural rules, time limits set
out in procedural rules could be easily circumvented and
would have little meaning.
Barber's failure to state good cause for not filing a
brief or filing a motion to extend the brief time would be
sufficient reason to grant the State's motion to dismiss
the appeal, we further note that Barber's contention that
the appeal has merit is unfounded. Barber argued the
following grounds for the writ in his habeas petition: his
plea of guilty violated the prohibition against
self-incrimination; he was not charged by grand jury as
required by law; the trial court did not abide by Arkansas
Rule of Criminal Procedure 24.4 (2016) when it accepted his
plea; the trial court did not establish a factual basis for
the plea; the trial court did not establish that the plea was
voluntarily entered; he was not afforded effective assistance
of counsel in the plea proceeding. None of the allegations
stated a ground on which a writ of habeas corpus could
properly be issued.
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.
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. There was no error in the
circuit court's decision to dismiss Barber's habeas
petition because he did not establish that the trial court
lacked jurisdiction in his case or that the commitment was
invalid on its face.
defendant enters a plea of guilty, the plea is his trial.
Crockett v. State, 282 Ark. 582, 669 S.W.2d 896
(1984). A habeas corpus proceeding does not afford a prisoner
an opportunity to retry his case. Hobbs v. Turner,
2014 Ark. 19, 431 S.W.3d 283. Accordingly, claims of trial
error such as those advanced by Barber in his petition are
not within the purview of the remedy because the writ will
not be issued to correct errors or irregularities that
occurred at trial. See Mackey v. Lockhart, 307 Ark.
321, 819 S.W.2d 702 (1991). Habeas proceedings are also not a
means to challenge the sufficiency of the evidence in a case.
See Blevins v. Norris, 291 Ark. 70, 71, 722 S.W.2d
573, 574 (1987) (Habeas corpus petitions are restricted to
the questions of whether the petitioner is in custody
pursuant to a valid conviction or whether the convicting
court had proper jurisdiction.). Claims of an involuntary
plea or of improper plea procedures also do not raise a
question of a void or illegal sentence that may be addressed
in a habeas proceeding. See Fields, 2016 Ark. 416.
As to Barber's assertion that he was entitled to be
charged by grand jury, it is well settled that states are not
required to charge by indictment but may charge by
information. Hurtado v. California, 110 U.S. 516
(1884). This court has addressed this issue many times and
has consistently refused to extend the right to grand jury
indictment to proceedings in this state. Taylor v.
State, 303 Ark. 586, 593, 799 S.W.2d 519, 523 (1990).
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 or an opportunity to raise