FROM THE JEFFERSON COUNTY CIRCUIT COURT [35CV-16-317]
HONORABLE JODI RAINES DENNIS, JUDGE.
Jeffery Edwards, pro se appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
1997, appellant Jeffrey Wendell Edwards was found guilty by a
jury in the Washington County Circuit Court of rape,
attempted rape, commercial burglary, and second-degree
battery. In addition, the trial court revoked Edwards's
probation for prior offenses of residential burglary and
theft of property. The sentences for the six offenses were
ordered to be served consecutively for a total of 70
years' imprisonment. The Arkansas Court of Appeals
affirmed. Edwards v. State, No. CACR-98-362 (Ark.
App. Oct. 28, 1998) (unpublished).
25, 2016, Edwards filed in the Jefferson County Circuit
Court, which is in the county where the headquarters of the
Arkansas Department of Correction ("ADC") is
located, a pro se petition for writ of habeas
corpus. The circuit court dismissed the petition
on the basis that Edwards had not stated a ground for the
writ. Edwards 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 being
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.
argued in his habeas petition that he was subjected to double
jeopardy because the same elements that were used to prove
that he committed rape were used to prove that he committed
attempted rape. He further contended that the attempted rape
of the same victim rendered the judgment invalid because
attempted rape is a lesser-included offense of rape.
affirm the order because Edwards did not state a ground on
which a writ of habeas corpus could be issued. While some
double-jeopardy claims are cognizable in habeas corpus
proceedings, where the petitioner does not show that on the
face of the commitment order there was an illegal sentence
imposed, the claim does not implicate the jurisdiction of the
court to hear the case, and the claim is not one that is
cognizable. Fields, 2013 Ark. 416, at 6-7.
Edwards's double-jeopardy claim was an attack on the
sufficiency of the evidence to sustain his conviction for
both rape and attempted rape. This court has held that rape
is not defined as a continuing offense. See Bryant v.
State, 2010 Ark. 7, 377 S.W.3d 152. If there were some
argument that could have been made that the rape and
attempted-rape charges in his case were such that Edwards
could not legally be found guilty of both offenses, the
assertion could have been raised, and settled, at trial and
on the record on direct appeal. A habeas proceeding does not
afford a prisoner an opportunity to retry his case, and it is
not a substitute for raising an issue at trial or on direct
appeal. Philyaw, 2015 Ark. 465, 477 S.W.3d 503.
allegation that attempted rape is a lesser-included offense
of rape is also an issue that could have been addressed at
trial. More importantly, it cannot be discerned from the face
of the judgment that Edwards was convicted of an offense and
also convicted of a lesser-included offense to that offense.
Because the judgment-and-commitment order did not reflect on
its face that appellant was convicted of both an offense and
a lesser-included offense to that offense and because Edwards
did not establish that the trial court lacked jurisdiction in
his case, he did not meet his burden of showing that the face
of the judgment demonstrated that the judgment was invalid.
Russell v. Kelley, 2016 Ark. 224.
refers in his brief to the fact that the circuit court
entered its decision to dismiss his petition for writ of
habeas corpus without a hearing. If the statement was
intended to raise the failure to hold a hearing as a point
for reversal of the order, 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.
Russell, 2016 Ark. 224. As stated, the claims
Edwards raised in his petition were not within the purview of
a habeas proceeding. The circuit court was therefore not
clearly erroneous in denying habeas relief without a hearing.
Edwards contends that the circuit court erred by declaring
that the habeas petition constituted a "strike"
under Arkansas Code Annotated section 16-68-607 (Repl. 2005).
Section 16-68-607 precludes an incarcerated person from
bringing a civil action or an appeal therefrom when he has,
on three or more prior occasions, brought an action that was
frivolous, malicious, or failed to state a claim on which
relief may be granted. Habeas petitions that fail to state a
claim on which relief can be granted are appropriately
counted as strikes under section 16-68-607. Because
Edwards's petition clearly failed ...