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Anderson v. Kelley

Supreme Court of Arkansas

June 21, 2018

THEODORE ANDERSON APPELLANT
v.
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

          PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT; PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL AND TO CORRECT THE DOCKET NUMBER ON THE COVER SHEET [NO. 40CV-17-102] HONORABLE JODI RAINES DENNIS, JUDGE.

          RHONDAK.WOOD, ASSOCIATE JUSTICE.

         This is appellant Theodore Anderson's third appeal from an order denying his pro se petition for writ of habeas corpus. We affirm because Anderson's habeas petition raises only issues that this court has previously considered and rejected [1].

         Following a bench trial, Anderson was convicted on charges of residential burglary, domestic battering, and rape. The trial court imposed an aggregate sentence of 240 months' imprisonment. The Arkansas Court of Appeals affirmed. Anderson v. State, CR 07-900 (Ark. App. Feb. 20, 2008) (unpublished). In 2010, Anderson filed his first petition for habeas relief under Arkansas Code Annotated sections 16-112-101-123 (Repl. 2016). The circuit court denied his petition. On appeal, this court affirmed the denial, finding Anderson's petition without merit. Anderson v. State, 2011 Ark. 35 (per curiam).

         In a subsequent habeas petition, Anderson pursued the same issues. Once again, the circuit court rejected Anderson's petition and this court affirmed its ruling. Anderson v. Kelley, 2015 Ark. 411, 473 S.W.3d 537 (per curiam).

         In his present habeas petition, Anderson continues to allege that the trial court lacked jurisdiction because his case was incorrectly filed in a juvenile court. He also contends that he is illegally detained insofar as his arrest was procedurally defective, he was not properly arraigned and did not enter a plea on the record, the criminal information charging him was defective, and the deputy prosecuting attorney did not have authority to sign the information.[2] In accordance with our previous rulings, we find these claims without merit. Anderson, 2015 Ark. 411, 473 S.W.3d 537.

         A circuit court's decision on a petition for habeas relief is upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake was made. Id. A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when the trial court lacked jurisdiction over the cause. Story v. State, 2017 Ark. 358. It is the petitioner's burden to establish probable cause, by affidavit or other evidence, that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1); Garrison v. Kelley, 2018 Ark. 8, 534 S.W.3d 136. Unless the petitioner satisfies this showing, there is no basis for issuing a writ of habeas corpus. Fields v. Hobbs, 2013 Ark. 416.

         Anderson frames his allegations as issues of jurisdiction. Yet his claims, with one exception, are simply allegations of trial error. While claims of defective information that raise a jurisdictional issue-such as a claim of an illegal sentence-are cognizable in habeas proceedings, general defective information allegations are not. Clay v. Kelley, 2017 Ark. 294, 528 S.W.3d 836. Indeed, such assertions of trial error and due-process violations do not implicate the facial validity of a trial court's judgment or jurisdiction. Ratliff v. Kelley, 2018 Ark. 105, 541 S.W.3d 408.

         The defective information claims advanced in Anderson's petition are claims of trial error. Because a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial, his claims fall outside the scope of remedy afforded by the writ. Barber v. Kelley, 2017 Ark. 214. A habeas proceeding does not afford a prisoner an opportunity to retry his or her case. Id.

         Anderson's only viable allegation is that the trial court lacked subject-matter jurisdiction to try adult, criminal cases. But as this court previously explained, this claim is without merit.[3] See Young v. Ark. Dep't of Human Servs., 2012 Ark. 334.

         The circuit court did not clearly err in declining to issue the writ. Affirmed; motion to correct docket number granted; motion for appointment of counsel moot.

          Hart, J., concurs.

          Josephine Linker Hart, Justice, concurring.

         While I agree with the majority's disposition of this case, I write separately because I cannot sign on to the majority's intimation that an allegation of a defective information is somehow a claim of "trial error." Allegations of deficiencies in the information are traditionally addressed with a motion to quash filed in the circuit court, before the jury decides guilt at trial. See, e.g., Nance v. State, 323 Ark. 583, 918 S.W.3d 114 (1996); Dupree v. State, 271 Ark. 50, 607 S.W.2d 356 (1980). Instead, it would be more accurate to state that a failure to assert a deficiency contained in the information (excluding deficiencies that would deprive the circuit court of jurisdiction) before trial or plea amounts to a waiver of the deficiency. See Geoates v. State, 206 Ark. 654, 176 S.W.2d 919 (1944) ("The irregularity, if objectionable to the defendant, should ...


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