APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO.
40CV-16-137] HONORABLE JODI RAINES DENNIS, JUDGE
Michael Anthony Clay, pro se appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
A. WOMACK, Associate Justice
Michael Anthony Clay filed in the circuit court in the county
where he was incarcerated a pro se petition for writ of
habeas corpus pursuant to Arkansas Code Annotated section
16-112-101 to -123 (Repl. 2016), alleging he was actually
innocent of the offense of capital murder and that his
due-process rights had been violated. The circuit court dismissed
Clay's habeas petition, finding that Clay had failed to
establish probable cause that he was being held illegally,
that the trial court lacked jurisdiction, or that the
commitment was invalid on its face. On appeal, Clay renews
his claims; specifically, that the State failed to charge or
prove the underlying felony of robbery in furtherance of the
murder and that it is a denial of due process to send an
accused person to prison following conviction on a charge for
which he was never tried. Because Clay failed to establish
probable cause for the writ to issue, this court affirms the
dismissal of habeas relief.
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 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); see Barber v. Kelley, 2017 Ark. 214, at 3-4.
A habeas proceeding does not afford a prisoner an opportunity
to retry his or her case, and it is not a substitute for
direct appeal or postconviction relief. See Noble v.
Norris, 368 Ark. 69, 243 S.W.3d 260 (2006). A 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. Unless
the petitioner 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.
appeal, Clay contends that he makes "two separate claims
under the heading of innocence. One that he is actually
innocent of the underlying felony under Arkansas law, and he
is innocent of a lifewithout parole sentence." Clay
first argues that the State failed to prove robbery as the
underlying felony of capital murder pursuant to Arkansas Code
Annotated section 5-10-101. Specifically, he contends that
the State's only proof indicated that the alleged robbery
was an afterthought to the murder and not a motivating factor
because "theft was the only evidence proven at
trial"; that he should have been considered for the
charge of first-degree murder; and that the State failed to
allege that the murder and the robbery were all part of one
transaction. Clay also vaguely alleges a due-process
violation because his conviction was "affirmed under a
criminal statute for a violation of which he had not [been]
charged in the felony information or found guilty with the
underlying felony of robbery." Clay fails to establish
that the trial court lacked jurisdiction or that the
commitment was invalid on its face.
of actual innocence, which are effectively challenges to the
sufficiency of the evidence, are due-process claims that are
not cognizable in habeas proceedings. See Philyaw,
2015 Ark. 465, at 6, 477 S.W.3d at 507 (Due-process claims do
not implicate the facial validity of the judgment or the
jurisdiction of the trial court.). In making his
actual-innocence challenge, Clay failed to argue that his
sentence was facially invalid or that the trial court lacked
jurisdiction. Clay's claims regarding the underlying
felony of robbery have been raised and specifically addressed
by this court on direct appeal from the judgment as a
challenge to the sufficiency of the evidence. In his direct
appeal, Clay argued that the evidence was "insufficient
to establish the allegation that he murdered Glynda Wallace
in the course of committing a felony as required for a
conviction pursuant to Ark. Code Ann. § 5-10-101"
and that his possession of Ms. Wallace's vehicle after
the homicide did not indicate that he was guilty of capital
felony murder. Clay v. State, 324 Ark. 9, 10-11, 919
S.W.2d 190, 190-91 (1996). This court found that Clay's
statements, when combined with the evidence of his subsequent
conduct with respect to Ms. Wallace's vehicle, were
sufficient to show the murder and robbery occurred together.
Id. at 12, 919 S.W.2d at 192.
Clay's claim of a due-process violation, he relies on
Cole v. Arkansas, 333 U.S. 196 (1948), for the
proposition that it is as much a "violation of due
process to send an accused person to prison following the
conviction of a charge on which he was never tried as it
would be to convict him upon a charge that was never
made." Clay reargues, under the guise of a
due-process violation, that the intention to commit a robbery
was never formed before the beginning of the fatal assault.
As stated, due-process claims do not implicate the facial
validity of the judgment or the jurisdiction of the trial
court. See Philyaw, 2015 Ark. 465, 477 S.W.3d 503.
Although claims 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,
allegations of a defective information are not generally
considered to be jurisdictional and are treated as trial
error. Williams v. Kelley, 2017 Ark. 200, 521 S.W.3d
104. To the extent Clay attempts to make an allegation of a
defective information, he fails to make an assertion of a
specific defect or that a defect rendered his sentence
of trial error do not implicate the facial validity of the
judgment or the jurisdiction of the trial
 A petitioner asserting the right to be
released on a writ of habeas corpus on the ground of actual
innocence must proceed under Act 1780 of 2001, codified at
Arkansas Code Annotated sections 16-112-201 to -208 (Repl.
2006), and the petition must be filed in the court in which
the conviction was entered. See Ark. Code Ann.