JOE PERRY, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
MOTION FOR BELATED BRIEF [CHICOT COUNTY CIRCUIT COURT, NO.
DAN KEMP, CHIEF JUSTICE.
Joe Perry, Jr., who is currently incarcerated at a unit of
the Arkansas Department of Correction located in Jefferson
County, filed a pro se petition for writ of habeas corpus in
the Chicot County Circuit Court. Perry filed his petition for
writ of habeas corpus pursuant to Arkansas Code Annotated
sections 16-112-101 to -123 (Repl. 2016). The circuit court
denied the habeas petition, finding Perry's petition
contained no allegations that his judgment-and-commitment
order imposed an illegal sentence or was invalid on its face,
or that the trial court lacked jurisdiction. Perry has lodged
an appeal from the denial of relief and has now filed a
motion seeking to file a belated brief on appeal. We need not
consider the merits of the motion because it is clear from
the record that Perry cannot prevail on appeal. We dismiss
the appeal, and Perry's motion is moot. An appeal from an
order that denied a petition for postconviction relief,
including an appeal from an order that denied a petition for
a writ of habeas corpus, will not be permitted to go forward
where it is clear that the appellant could not prevail.
Williams v. Kelley, 2017 Ark. 198. Any petition for
writ of habeas corpus to effect the release of a prisoner is
properly addressed to the circuit court in which the prisoner
is held in custody, unless the petition is filed pursuant to
Act 1780. See Ark. Code Ann. §§
16-112-201 to -208 (Repl. 2016). Although a circuit court may
have subject-matter jurisdiction to issue the writ, a court
does not have personal jurisdiction to issue and make
returnable before itself a writ of habeas corpus to release a
petitioner held in another county. Williams, 2017
Ark. 198; see Mackey v. Lockhart, 307 Ark. 321, 819
S.W.2d 702 (1991). Arkansas Code Annotated section 16-112-105
(Repl. 2016) requires that the writ be directed to the person
in whose custody the petitioner is detained. See State
Dep't of Pub. Welfare v. Lipe, 257 Ark. 1015, 1017,
521 S.W.2d 526, 528 (1975) ("[T]he controlling question
is the identity of the person in whose custody the prisoner
is detained."). Perry did not invoke Act 1780.
Accordingly, although Perry was incarcerated in Chicot County
at the time he filed the habeas petition, a writ of habeas
corpus issued by the Chicot County Circuit Court could not be
returned, as he is no longer within its
dismissed; motion moot.
Josephine Linker Hart, Justice, dissenting.
Perry's case, the only thing that is pending before this
court is Mr. Perry's motion to file a belated brief.
According to our rules, Mr. Perry has not yet perfected his
appeal; therefore, it is not appropriate to decide his appeal
on the merits. Furthermore, while it is permissible for this
court to dismiss Mr. Perry's appeal because he did not
timely file his brief, it is most certainly not proper to
dismiss his appeal on the merits and declare the motions
Perry's petition for a writ of habeas corpus was denied
by the Chicot County Circuit Court on April 4, 2017. Mr.
Perry timely filed a notice of appeal on May 1, 2017. He
timely lodged the record in this court on July 25, 2017,
which gave us jurisdiction. According to Arkansas Supreme
Court Rule 4-4, Mr. Perry was required to file his brief
within 40 days of having lodged the record, which means no
later than September 5, 2017.
Perry failed to file his brief on or before September 5,
2017. The above-referenced motion for an extension of time to
file his brief was not filed with this court until October 3,
2017. While I am mindful that it is problematic for
incarcerated persons to file legal material, according to the
attestation on Mr. Perry's motion, the motion was not
even ready for mailing until September 28, 2017. Furthermore,
the only "facts" asserted in Mr. Perry's motion
was that he turned over his "legal mail" to a
prison official on September 15, 2017. Based on the
foregoing, it would be proper-and constitutional-for this
court to dismiss Mr. Perry's appeal.
be true that the correct disposition of Mr. Perry's case
is dismissal. However, when we disregard our rules, the
resulting decision is not the product of the rule of law. Due
process is the keystone to legitimacy. Without due process,
our criminal justice system would be no better than a lynch
At the time Perry filed his habeas
petition, he was incarcerated in Chicot County.
The circuit court denied relief in an
order file-marked on April 3, 2017. At the time Perry filed
his notice of appeal and request for transcript on May 1,
2017, Perry indicated he was ...