APPEAL FROM THE LEE COUNTY CIRCUIT COURT [NO. 39CV-16-64]
HONORABLE RICHARD L. PROCTOR, JUDGE
DeWayne Johnson, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
JOSEPHINE LINKER HART, ASSOCIATE JUSTICE
Rodney Dewayne Johnson appeals to this court from the denial
by the Lee County Circuit Court of his pro se petition for
writ of habeas corpus filed pursuant to Arkansas Code
Annotated sections 16-112-102 to -123 (Repl. 2016). Johnson,
who entered pleas of guilty as a habitual offender in 1987 in
the Pulaski County Circuit Court to multiple felony charges,
argues four grounds for reversal of the circuit court order
in his brief: (1) that the trial court erred in accepting his
plea of guilty to the charge of rape because he was innocent
of the offense; (2) that the trial court determined that he
was a habitual offender without proof that he had been found
guilty of the prior offenses used to establish his status as
a habitual offender; (3) that the judgment-and-commitment
order in his case is facially invalid because he was
"convicted of crimes he was not convicted of, "
i.e., that the judgment in his case stated that he
was guilty of rape when it was not established that he had
penetrated the victim, and because the judgment cited
"Habitual Offender 5-4-501, " and he was not
charged under that statute; and (4) that the circuit court
did not address three of the grounds for relief raised in his
habeas petition. Because Johnson did not state a ground for
the writ in his petition, the circuit court's order is
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, 434 S.W.3d 364. 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. Smith v.
Kelley, 2016 Ark. 307.
first three grounds for reversal of the circuit court order
pertain to issues raised in Johnson's habeas petition
that are clearly outside the scope of the writ. A writ 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 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); Barber v.
Kelley, 2017 Ark. 214. Unless the petitioner in
proceedings for a writ of habeas corpus can show that the
trial court lacked jurisdiction or that the
judgment-and-commitment order was invalid on its face, there
is no basis for a finding that a writ of habeas corpus should
issue. Russell v. Kelley, 2016 Ark. 224; Fields
v. Hobbs, 2013 Ark. 416.
defendant enters a plea of guilty, the plea is his trial.
Barber, 2017 Ark. 214; Crockett v. State,
282 Ark. 582, 669 S.W.2d 896 (1984). A habeas corpus
proceeding does not afford a prisoner an opportunity to retry
his case. Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d
283. Accordingly, Johnson's claims of error by the trial
court that accepted his plea of guilty were not within the
purview of the remedy because the writ will not be issued to
correct errors or irregularities that occurred in a
guilty-plea proceeding. Barber, 2017 Ark. 214.
Claims of an involuntary plea or of improper plea procedures
do not raise a question of a void or illegal sentence that
may be addressed in a habeas proceeding. Id.
argument that his judgment referred to "Habitual
Offender 5-4-501" was an apparent reference to the fact
that the felony information filed in 1987 provided that
Johnson was charged as a habitual offender under Arkansas
Statutes Annotated section 41-1001 (Supp. 1985), but the
judgment entered provided that he was sentenced as a habitual
offender under Arkansas Code Annotated section 5-4-501
(1987). The habitual offender law, under the respective
codification was not merely ''identical" as the
State suggests in its brief, but rather it was exactly the
same law that was passed by the legislature. It is the act
passed by the legislature, not the code, that is the law.
This is a fundamental legal principle. See
Ortho-McNeil-Janssen Pharmaceuticals, Inc. v. State,
2014 Ark. 124, 432 S.W.3d 563.
provisions of both the applicable Arkansas Statutes and
Arkansas Code reflected that the felony information filed in
1987 and the judgment entered in 1988 provided that Johnson
had been found guilty of more than one prior felony but less
than four prior felonies, and Johnson affirmed when he
pleaded guilty that he understood that he was being charged
as a habitual offender, having committed more than one prior
felony but less than four prior felonies, and that he
understood the range of sentencing for the offenses. Johnson
is not entitled to a writ because the change from Arkansas
Statutes Annotated to Arkansas Code Annotated, which resulted
in the assignment of different codification numbers did not
change the law. The law, of course, is not the codification,
but the statute passed by the legislature. The different code
numbers did not mean that a different statute was involved.
The statute remained the same.
Johnson's assertions that he was not guilty of the
offense of rape, habeas proceedings are not a means to
challenge the sufficiency of the evidence to sustain a
judgment. See Blevins v. Norris, 291 Ark. 70, 722
S.W.2d 573 (1987) (Habeas corpus petitions are restricted to
questions of whether the petitioner is in custody pursuant to
a valid conviction or whether the convicting court had proper
jurisdiction.). Likewise, while claims that raise a
jurisdictional issue, such as those that raise a claim of an
illegal sentence, are cognizable in a habeas proceeding,
Johnson's claim that the felony information did not
contain proof of the prior felonies used to establish his
habitual-offender status could have been raised in the trial
court and settled there. As a result, challenges to
Johnson's status as a habitual offender were not
cognizable in his habeas action.
respect to Johnson's fourth point for reversal that the
circuit court failed to rule on the first three grounds
raised in the habeas petition, Johnson could have filed a
motion for reconsideration of any issues omitted in the order
so that he could obtain a specific ruling on the issues.
Denial of relief is not unfair when a petitioner had the
opportunity to pursue a remedy available to him, but he chose
not to do so. See Engram v. State, 360 Ark. 140, 200
S.W.3d 367 (2004). Johnson did not ask that an omitted issue
be considered, and this court will not address those grounds
now. Moreover, the circuit court's order denied relief on
the basis that the issues raised by Johnson, which are
reiterated in Johnson's brief on appeal, were not within
the purview of the writ. Because the issues raised failed to
implicate the jurisdiction of the trial court or the facial
validity of the judgment-and-commitment order, the circuit
court did not err by not listing each of Johnson's claims
individually in the order denying relief.
Johnson argues that the allegations raised in the habeas
petition warranted a hearing. There is no requirement that a
hearing be held on every habeas petition regardless of the
content of the petition. Gonder v. Kelley, 2017 Ark.
239; George v. State, 285 Ark. 84, 685 S.W.2d 141
(1985). A hearing is not required if the petition does not
allege either of the bases of relief proper in a habeas
proceeding, and even if a cognizable claim is made, the writ
does not have to be issued unless probable cause is shown.
Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 ...