APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT AND MOTIONS FOR
MANDATORY REVIEW OF JUDICIAL NOTICE OF ADJUDICATIVE FACTS
PURSUANT TO RULE 201 OF THE ARKANSAS RULES OF EVIDENCE, FOR
APPOINTMENT OF COUNSEL, AND TO STRIKE GRANT OF APPELLEE'S
MOTION FOR EXTENSION OF BRIEF TIME [NO. 40CV-16-136]
HONORABLE JODI RAINES DENNIS, JUDGE
Gonder, pro se appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
A. WOMACK, ASSOCIATE JUSTICE.
Duane Gonder brings this appeal from the denial by the
Lincoln County Circuit Court on March 10, 2017, of his pro se
motion pursuant to Rule 60 of the Arkansas Rules of Civil
Procedure (2016) and the denial of his pro se motion for
judicial notice of adjudicative facts under Rule 201 of the
Arkansas Rules of Evidence. Both motions sought
reconsideration of Gonder's petition for writ of habeas
corpus that had been dismissed by the circuit court on
January 19, 2017. Pending our
review of his case, Gonder additionally filed a motion to
have counsel appointed as well as another motion for judicial
notice of adjudicative facts in this court. We affirm the
circuit court order. Accordingly, Gonder's motions filed
in this appeal are moot.
habeas petition and motions pertained to Gonder's guilty
plea in 2010 to the offense of attempting to furnish
prohibited articles into a correctional facility. Gonder
argues on appeal that his habeas petition should have been
granted because the judgment-and-commitment order states that
he had been convicted of attempted furnishing of a prohibited
article but the trial court pronounced at sentencing that he
was guilty of furnishing a prohibited article rather than
attempting to do so, that he was not guilty of the offense,
and that he was denied a hearing on the habeas petition. He
further argues, without reference to either Rule 60 or Rule
201, that the circuit court erred by not granting his habeas
circuit court's decision in a habeas proceeding will be
upheld unless it is clearly erroneous. See 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.
Conflict between sentence pronounced and judgment
judgment that is entered governs the sentenced imposed on the
defendant. See Bradford v. State, 351 Ark. 394, 94
S.W.3d 904 (2003). To the extent that Gonder argued in the
Rule 60 motion, as he did in his habeas petition and does in
this appeal, that the judgment in h is case was facially
illegal because it did not reflect that he had entered a plea
of guilty to attempted furnishing of a prohibited
article, the copy of the judgment in the record reflects that
Gonder was indeed convicted of the offense of attempting to
furnish a prohibited article. Accordingly, there was no error
in the judgment.
Actual innocence as a ground for relief in habeas
asserted in both the Rule 60 motion and the motion for
judicial notice that the writ of habeas corpus should have
been issued because he was innocent of the offense and the
evidence against him was insufficient to sustain the
judgment. In his motion asking the court to take judicial
notice of adjudicative facts, he cited Laster v.
State, 76 Ark.App. 324, 64 S.W.3d 800 (2002), as support
for his allegation that he was not guilty of the offense of
which he was convicted. In Laster, a prison
inmate's conviction for introduction of a prohibited
article into a place of incarceration was overturned on
appeal because the prisoner had the prohibited article in his
possession but there was insufficient proof to establish that
he introduced the article into the institution.
reliance on Laster was a direct attack on the
sufficiency of the evidence to sustain the judgment in his
case. Proceedings for the writ are not intended to require an
extensive review of the record of the trial proceedings, and
the circuit court's inquiry into the validity of the
judgment is limited to the face of the commitment order.
Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503.
For that reason, arguments pertaining to whether the evidence
was sufficient to sustain the judgment are not cognizable in
a habeas proceeding.
Failure to hold hearing in habeas proceeding
is no requirement that a hearing be held on every habeas
petition regardless of the content of the petition.
George v. State,285 Ark. 84, 85, 685 S.W.2d 141,
142 (1985). Because Gonder has not established that his
motions seeking reconsideration of his habeas petition had
merit, he has not ...