FROM THE JEFFERSON COUNTY CIRCUIT COURT AND PRO SE MOTION TO
SUPPLEMENT APPELLANT'S BRIEF [NO. 35CV-17-486] HONORABLE
JODI RAINES DENNIS, JUDGE.
K. WOOD, Associate Justice.
Kelvin Collier appeals the dismissal of his petition for writ
of habeas corpus by the circuit court in the county where he
is incarcerated. He has filed a motion to supplement his
brief on appeal. We grant Collier's motion to supplement
his brief with two pages inadvertently left out during the
copying process. Because the circuit court did not err when
it found Collier failed to state a ground for the writ, we
1997, Collier pleaded guilty to multiple offenses including
first-degree murder and aggravated robbery. He argued in his
habeas petition that (1) he was innocent; (2) he was merely
an accomplice to second-degree murder and that no robbery
occurred; (3) the trial court failed to inform him of the
minimum sentences when he entered his guilty plea; (4) his
codefendant was the principal perpetrator but was convicted
of only second-degree murder and sentenced to 240 months'
imprisonment, rendering Collier's sentence of 420
months' imprisonment "grossly
disproportionate"; (5) he was denied equal protection of
law because he was an indigent and a greater sentence was
imposed on him than on his codefendant who was not indigent;
(6) he was misled when he entered his guilty plea as to the
statutes that applied to the charges against him and the
length of the terms of imprisonment that would be imposed.
Collier asserted that these grounds for relief established
that the trial court lacked jurisdiction to enter the
judgment in his case and that the judgment was illegal on its
face. On appeal he challenges the circuit court's finding
that his claims were not cognizable in a writ of habeas
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. Id.
of habeas corpus is proper when a judgment of conviction is
invalid on its face or when a circuit court lacks
jurisdiction over the cause. Philyaw v. Kelley, 2015
Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the
court to hear and determine the subject matter in
controversy. Baker v. Norris, 369 Ark. 405, 255
S.W.3d 466 (2007). Under our statute, a petitioner for the
writ who does not allege his actual innocence and proceed
under Act 1780 of 2001 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). Unless the petitioner can show that the trial court
lacked jurisdiction or that the commitment was invalid on its
face, there is no basis for a finding that a writ of habeas
corpus should issue. Fields v. Hobbs, 2013 Ark. 416.
first two points grounds for habeas relief are that no
aggravated robbery occurred and that he was guilty of no more
than second-degree murder. These constitute a challenge to
the sufficiency of the evidence and are not actual innocence
claims. They are direct attacks on the judgment and not
cognizable in a habeas proceeding. Johnson v. State,
2018 Ark. 42, 538 S.W.3d 819. Collier entered a guilty plea,
and when a defendant enters a plea of guilty, the plea is his
trial. Id. A habeas corpus proceeding does not
afford a prisoner an opportunity to retry his or her case.
Id. Accordingly, Collier's claims of error by
the trial court that accepted his plea of guilty were not
within the scope of this remedy because the writ will not be
issued to correct errors or irregularities that occurred in a
guilty-plea proceeding. Barber v. Kelley,
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.
circuit court was correct that Collier's third through
sixth claims also are not cognizable in a writ of habeas
corpus. These claims primarily revolve around his
dissatisfaction with his sentence. And, if the sentence is
within the limits set by statute, it is legal. Beyard v.
State, 2017 Ark. 203. Collier fails to claim his
sentence is outside the statutory range or disproportionate
to the offense of which he was convicted such that it
violated the Eighth Amendment. The mere disproportionality of
the sentence when compared to his codefendant does not render
the sentence illegal on its face. Also, a difference in the
sentence imposed on Collier as compared to his codefendant
did not deprive the trial court of jurisdiction.
Collier contends in his brief that the circuit court erred in
not holding a hearing on his habeas petition. While our
statutory habeas corpus scheme contemplates a hearing in the
event the writ is issued, there is no requirement that a
hearing be given a petitioner regardless of the content of
the petition. Mackey v. Lockhart, 307 Ark. 321, 819
S.W.2d 702 (1991). A hearing is not required on a habeas
petition, even where the petition alleges an otherwise
cognizable ground, when probable cause for the issuance of
the writ is not shown by affidavit or other evidence. As
Collier failed to state a ground for the writ or to
demonstrate probable cause for the issuance of the writ, the
circuit court was not required to hold a hearing.
Johnson, 2018 Ark. 42, 538 S.W.3d 819.
Josephine Linker Hart, Justice, concurring.
with the majority's conclusion that Collier has not
established that he is entitled to a writ of habeas corpus,
but I write separately for the reasons outlined in
Stephenson v. Kelley, 2018 Ark. 143, S.W.3d (Hart,
J., dissenting). This court has never justified its
restriction of State habeas corpus relief to claims of
"facial invalidity or lack of jurisdiction, "
despite the fact that Arkansas's habeas corpus statute so
plainly contemplates there being other cognizable grounds for
the writ. See Ark. Code Ann. § ...