MICHAEL D. MULDROW APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
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
A. WOMACK, Associate Justice
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.
Underlying Petition and Order Denying Pauper Status
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
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.
Standard of Review
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.
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
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.
Muldrow's Bases for the Writ
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 ...