MOTIONS FOR TRANSCRIPT, FOR EXTENSION OF TIME TO FILE BRIEF,
FOR RULE ON CLERK CLARIFICATION, AND FOR BELATED APPEAL
CLARIFICATION; PRO SE PETITION FOR WRIT OF MANDAMUS [LINCOLN
COUNTY CIRCUIT COURT, NO. 40CV-17-84] APPEAL DISMISSED;
MOTIONS AND PETITION MOOT.
DAN KEMP, Chief Justice
an appeal from the Lincoln County Circuit Court's denial
of a pro se petition for a writ of habeas corpus filed under
Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of
2005 and codified as Arkansas Code Annotated sections
16-112-201 to -208 (Repl. 2016), and for a writ of audita
querela. Appellant Jessie Hill's pro se petition
sought postconviction relief in connection with his
conviction for capital murder in Grant County. Pending before
this court are Hill's pro se motions for transcript, for
extension of time to file brief, for rule-on-clerk
clarification and belated-appeal clarification, and pro se
petition for writ of mandamus.
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. A
writ of audita querela is indistinguishable from a
writ of error coram nobis in that it permits a defendant in
some instances to obtain relief based on allegations of newly
discovered evidence following the rendition of a judgment.
See Pitts v. State, 2016 Ark. 345, 501 S.W.3d 803;
7A C.J.S. Audita Querela § 2 (2016) (the
difference between coram nobis and audita querela is
largely one of timing, not substance). Hill's petition
for audita querela is properly treated as one for a
writ of error coram nobis. An appeal from the denial of coram
nobis relief will similarly not be permitted to go forward
when it is clearly without merit. Because it is clear from a
review of the record that the circuit court did not have
jurisdiction to address the claims for postconviction relief
under either of the two interchangeable remedies, we dismiss
the appeal, and Hill's multiple motions and his petition
are therefore moot.
incarcerated in the Arkansas Department of Correction
pursuant to a judgment entered on September 18, 1995, in
Grant County, which reflects a conviction for capital murder
for which he was sentenced to life without parole. This court
affirmed the judgment. Hill v. State, 325 Ark. 419,
931 S.W.2d 64 (1996). Hill subsequently filed two petitions in
this court seeking permission to reinvest jurisdiction in the
trial court to consider a petition for writ of error coram
nobis with respect to his capital-murder conviction. Both
petitions were denied. Hill v. State, 2017 Ark. 121,
516 S.W.3d 249, reh'g denied (May 4, 2017);
Hill v. State, CR-96-270, (Ark. Mar. 13, 2008)
(unpublished per curiam).
petition filed below, Hill argued that he was actually
innocent and was entitled to habeas and audita
querela relief based on a United States Supreme Court
ruling in Bailey v. United States, 516 U.S. 137
(1995), which held that mere possession of a weapon is
insufficient proof to sustain a conviction for use of a
deadly weapon pursuant to a federal criminal statute
applicable to drug trafficking. Hill alleged that the holding
in Bailey represented a new constitutional rule that
is retroactively applicable to his case and entitles him to
scientific testing of items found at the crime scene,
including a marble rolling pin, to establish that Hill did
not actively "use" the rolling pin to murder the
victim. Hill's reliance on Bailey is misplaced.
Bailey construes the meaning of "use" in a
federal criminal statute; it does not purport to be anything
other than a statutory decision and does not represent a new
rule of constitutional law. See Gray-Bey v. United
States, 209 F.3d 986 (7th Cir. 2000). In any event, the
circuit court denied Hill's petition based on the lack of
jurisdiction to hear either claim.
Petition for Writ of Habeas Corpus
circuit court's decision on a petition for writ of habeas
corpus will be upheld unless it is clearly erroneous.
Lohbauer v. Kelley, 2018 Ark. 26. 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. 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. Perry v. State, 2018 Ark. 14, 535 S.W.3d 264.
A petition for a writ of habeas corpus alleging entitlement
to new scientific testing must be addressed to the court that
entered the conviction. See Ark. Code Ann. §
16-112-201(a). The circuit court did not clearly err when it
concluded that it did not have jurisdiction to address
Hill's claim for habeas relief pursuant to Act 1780, as
Hill's conviction was entered in Grant County and not in
Petition for Writ of Error Coram Nobis
standard of review for the denial of a petition for writ of
error coram nobis is whether the trial court abused its
discretion in granting or denying the writ. Ramirez v.
State, 2018 Ark. 32, 536 S.W.3d 614. An abuse of
discretion happens when the trial court acts arbitrarily or
groundlessly. Id. The trial court's findings of
fact on which it bases its decision to grant or deny the
petition for writ of error coram nobis will not be reversed
on appeal unless they are clearly erroneous or clearly
against the preponderance of the evidence. Id. There
is no abuse of discretion in the denial of error coram nobis
relief when the claims in the petition are groundless.
petition for a writ of error coram nobis must also be
addressed to the trial court where the conviction was
entered, and the trial court cannot entertain a petition for
writ of error coram nobis after a judgment has been affirmed
on appeal unless this court grants permission. Carner v.
State, 2018 Ark. 20, 535 S.W.3d 634. As set forth above,
Hill's Grant County conviction for capital murder was
affirmed on appeal by this court. The Lincoln County Circuit
Court did not abuse its discretion when it found that it did
not have the authority to address Hill's petition for
audita querela, which is properly treated as a
petition for writ of error coram nobis, as such petitions
must be filed in the trial court if this court grants
permission to do so.
dismissed; motions and petition moot.
Josephine Linker Hart, ...