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Muldrow v. Kelley

Supreme Court of Arkansas

April 12, 2018

MICHAEL D. MULDROW APPELLANT
v.
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

          PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT; PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [NO. 40CV-17-99] HONORABLE JODI RAINES DENNIS, JUDGE

          HONORABLE JODI RAINES DENNIS, JUDGE

          SHAWN A. WOMACK, Associate Justice

         Appellant Michael D. Muldrow is an inmate incarcerated in a facility of the Arkansas Department of Correction in Lincoln County. He sought to proceed as a pauper with a petition for writ of habeas corpus in the circuit court in that county. The circuit court denied Muldrow's request to proceed in forma pauperis, and Muldrow lodged this appeal. Muldrow filed a motion in which he seeks an extension of time to file his brief. Because it is clear from the record that the circuit court correctly found that Muldrow's habeas petition did not state a colorable cause of action, we affirm on appeal and the motion is moot.

          I. Underlying Petition and Order Denying Pauper Status

         The habeas petition that Muldrow sought to pursue as a pauper cited the statutes for Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005, which provides habeas relief based on new scientific evidence. Ark. Code Ann. §§ 16-112-201 to -208 (Repl. 2016). The petition also referenced Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016) and alleged that his conviction should be dismissed because the trial court lacked jurisdiction. Muldrow based these claims on allegations of prosecutorial misconduct and actual innocence.

         In its order denying pauper status for Muldrow on the petition, the circuit court specifically found that Muldrow had failed to allege facts that would support a colorable cause of action. The circuit court based that conclusion on its findings that prosecutorial misconduct was not a cognizable claim in habeas proceedings and that a claim under Act 1780 must be filed in the county where the petitioner was convicted.

         II. Standard of Review

         Our review of a decision to grant or deny a petition to proceed in forma pauperis is abuse of discretion. Penn v. Gallagher, 2017 Ark. 283. The circuit court's factual findings in support of its exercise of discretion will not be reversed unless clearly erroneous. Id. Rule 72 of the Arkansas Rules of Civil Procedure conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c) (2017). Obvious defects in the underlying petition allow this court to dispose of an appeal from the denial of in forma pauperis proceedings. Wood v. State, 2017 Ark. 290. If the underlying petition clearly fails to state a colorable cause of action, there has been no abuse of discretion, and this court may summarily affirm the denial of in forma pauperis status. See Ashby v. State, 2017 Ark. 233.

         III. Jurisdiction

         A petition for relief under Act 1780 is commenced by filing a petition in the court in which the conviction was entered. Ark. Code Ann. § 16-112-201(a). If Act 1780 is not the basis for issuance of the writ, our statutes provide, "The writ shall be directed to the person in whose custody the prisoner is detained, and made returnable as soon as may be ... before the circuit judges of the county in which it may be served, if either are within the county." Ark. Code Ann. § 16-112-105(b)(1); Hundley v. Hobbs, 2015 Ark. 70, at 3, 456 S.W.3d 755, 757. A circuit court, in proceedings other than those under Act 1780, has personal jurisdiction over the prison officials who detain a prisoner seeking the writ, and it has authority to return the writ when that prisoner is incarcerated within the jurisdiction of the court from which he or she seeks the writ. Dunahue v. Kelley, 2018 Ark. 4, 534 S.W.3d 140. Because Muldrow challenged a conviction in the Hempstead County Circuit

          Court, the Lincoln County Circuit Court did not have jurisdiction under Act 1780. It did have jurisdiction for claims for the writ not under the Act.

         IV. Muldrow's Bases for the Writ

         Because the circuit court in which he filed the petition could not consider Muldrow's claims under Act 1780, his petition failed to allege facts indicating a colorable cause of action under the Act. Under our statute, a petitioner for the writ who does not proceed under Act 1780 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 or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1). Muldrow alleged that he was being held according to an invalid conviction ...


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