FOR LEAVE TO ADD TO ADDENDUM OF APPEAL BRIEF TO PROVIDE
COMPLETE MEDICAL RECORD [JEFFERSON COUNTY CIRCUIT COURT, NO.
McClinton, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice
an appeal from the trial court's denial of a pro se
petition for writ of habeas corpus filed under Act 1780 of
2001 Acts of Arkansas, as amended by Act 2250 of 2005 and
codified at Arkansas Code Annotated sections 16-112-201 to
-208 (Repl. 2016). Pending before this court is appellant
Edmond McClinton's pro se motion for leave to add to the
addendum of his appeal brief in order to provide the complete
medical records pertaining to the victim.
not consider the motion to supplement the addendum because
there is clearly no merit to the appeal. An appeal of the
denial of postconviction relief, including an appeal from an
order denying a petition for writ of habeas corpus under Act
1780, will not be permitted to go forward when it is clear
that the appellant could not prevail. Marshall v.
State, 2017 Ark. 208, 521 S.W.3d 456. Because a review
of the habeas petition and the pertinent records related to
McClinton's conviction conclusively demonstrate that he
could not prevail, we dismiss the appeal, and the motion
seeking to supplement the addendum is therefore
was convicted by a Jefferson County jury of raping a mentally
handicapped sixteen-year-old girl, and he was sentenced as a
habitual offender to a term of life imprisonment. We
affirmed. McClinton v. State, 2015 Ark. 245, 464
S.W.3d 913, cert. denied, 136 S.Ct. 367 (2015).
Thereafter, McClinton filed in the trial court a pro se
petition for a writ of habeas corpus pursuant to Act 1780 and
raised the following allegations as a basis for entitlement
to scientific testing: that the DNA evidence collected was
illegally obtained as there was no probable cause for its
collection due to the lack of medical evidence showing that a
rape had occurred; that the physical evidence admitted at
trial was done so without establishing a proper chain of
custody; that the results of any forensic analysis
constituted hearsay evidence; that the evidence collected at
the crime scene was not subjected to DNA analysis; that the
conviction was based on insufficient evidence; and that all
of the above-cited errors resulted from ineffective
assistance of counsel.
contended that due to the above-cited defects in the
investigative and trial proceedings, he was entitled to
scientific testing of evidence collected at the crime scene
which had not been subjected to forensic analysis at the time
of his trial. In support of these claims, McClinton attached
to his habeas petition documents generated by the Pine Bluff
Police Department, the Arkansas State Crime Lab, and the
Jefferson Regional Medical Center. An attached
police-department document listed items collected from the
crime scene while two documents from the crime lab referenced
a sexual-assault kit and a buccal swab taken from McClinton.
McClinton asserted that, because the sexual-assault kit and
the buccal swab were not collected from the crime scene and
were not referenced in police-department records, the items
lacked a proper foundation and were, therefore, of dubious
origin. McClinton also asserted that the attached medical
record from the Jefferson County Regional Medical Center did
not mention obtaining a sexual-assault kit. Finally,
McClinton alleged that investigators altered the DNA obtained
from the buccal swab. In sum, McClinton asserted that, due to
the alleged unreliable nature of the sexual-assault kit and
the buccal swab, and based on his bald assertion that this
evidence had been falsified, he is entitled to additional
forensic testing of the items collected from the crime scene.
According to McClinton, such testing of the evidence
collected at the crime scene would prove his innocence.
trial court denied relief and concluded that McClinton failed
to state grounds upon which relief could be granted under Act
1780. We do not reverse a denial of postconviction relief
unless the trial court's findings are clearly erroneous.
Polivka v. State, 2010 Ark. 152, 362 S.W.3d 918.
"A finding 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 committed." State
v. Barrett, 371 Ark. 91, 95, 263 S.W.3d 542, 545 (2007).
Here, the trial court did not clearly err when it concluded
that the above-cited claims for relief were not cognizable
under Act 1780.
under Act 1780 are limited to those claims related to
scientific testing of evidence. The Act does not provide an
opportunity for the petitioner to raise issues outside the
purview of the Act, and a petition under the Act does not
serve as a substitute for the pursuit of other remedies.
Marshall, 2017 Ark. 208, 521 S.W.3d 456.
McClinton's allegations challenging the credibility of
the evidence as either illegally obtained or without proper
foundation as well as his claims of trial court error and
ineffective assistance of counsel are claims that are clearly
outside the purview of Act 1780. Id. 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. Cf. Edwards v.
Kelley, 2017 Ark. 254, 526 S.W.3d 825 (regarding habeas
petitions filed pursuant to 16-112-101 - 123). Moreover, the
sufficiency of the evidence was not challenged on direct
appeal. See McClinton, 2015 Ark. 245, 464 S.W.3d 913
(addressing the one issue raised on direct appeal that
evidence of juror bias supported a mistrial). The allegations
contained in McClinton's pro se petition represented an
attempt to bootstrap challenges to the sufficiency of the
evidence for the purpose of justifying entitlement to
scientific testing under Act 1780. As explained below,
McClinton's allegations failed to meet the fundamental
requirements for relief under the Act.
prerequisite for establishing a prima facie claim under Act
1780 includes demonstrating the existence of evidence or
scientific methods of testing that had not been available at
the time of trial or could not have been previously
discovered through the exercise of due
diligence. Ark. Code Ann. § 16-112-201(a)(1)(2).
Furthermore, the petitioner is required to demonstrate that
the identity of the perpetrator was at issue during the
investigation and prosecution of the offense being
challenged. Ark. Code Ann. § 16-112-202(7). Finally, the
petitioner must also show that the proposed testing of the
specific evidence may produce material evidence that would
raise a reasonable probability that the person making a
motion under this section did not commit the offense. Ark.
Code Ann. § 16-112-202(8)(B). Accordingly, we have made
clear that under Act 1780 scientific testing is authorized if
testing or retesting can provide materially relevant evidence
that will significantly advance the defendant's claim of
innocence in light of all the evidence presented to the jury.
Johnson v. State, 356 Ark. 534, 157 S.W.3d 151,
cert. denied 543 U.S. 932 (2004).
petition for habeas relief, McClinton did not allege that new
evidence had come to light or that new methods of forensic
testing became available that were not available at the time
of his trial. Rather, McClinton contended that he is entitled
to testing of items that had been collected at the crime
scene and were available for forensic analysis at the time of
trial, based on assertions that all other evidence presented
at his trial lacked credibility or had been falsified.
McClinton's allegations in this regard are entirely
conclusory and otherwise represent an attempt to pursue a
remedy that was available at trial or on direct appeal.
Marshall, 2017 Ark. 208, 521 S.W.3d 456.
Furthermore, a review of the trial record reveals that
McClinton's identification was not at issue during the
trial because the victim's sister testified that she had
witnessed the rape and called police to the scene.
See Ark. Code Ann. § 16-112-202(7). McClinton
was therefore identified as the only possible rapist, by a
witness who knew him, and his defense at trial consisted of
questioning the credibility of the victim's sister and
the physical evidence establishing that the rape had
occurred. In such a case, identity is not at issue for
purposes of a petition under Act 1780.
assuming McClinton met the other prerequisites under Act
1780, he failed to demonstrate that such testing would have
produced material evidence of his innocence when viewed in
light of the evidence as a whole. Ark. Code Ann. §
16-112-201(a)(2); see Johnson, 356 Ark. 534, 157
S.W.3d. 151. The trial record reveals that the evidence, as a
whole, included testimony of a witness to the rape and
forensic evidence that placed McClinton's DNA on the
vaginal and rectal swabs taken from the victim.
despite McClinton's allegations to the contrary, there
was testimony from the nurse and the physician who attended
the victim at the Jefferson Regional Medical Center that a
sexual-assault kit had been properly obtained and provided to
investigators for forensic analysis. Testimony from the
forensic analyst established that the vaginal and rectal
swabs included in this kit contained a mixture of DNA from
which neither the victim nor McClinton could be excluded. The
analyst explained that only one in approximately 16 million
individuals would potentially be included as DNA contributors
to the mixture of DNA found on those swabs, and 99.99 percent
of black males would be excluded. In fact, the record
demonstrates that the chief criminologist with the Arkansas
State Crime Lab testified on cross-examination that ...