JACKIE BREEDEN, JR. APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO.
40CV-17-157], HONORABLE JODI RAINES DENNIS, JUDGE
Breeden, Jr., pro se appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
RHONDAK.WOOD, Associate Justice
Jackie Breeden, Jr., appeals the denial of his pro se
petition to proceed in forma pauperis. The circuit court
denied his petition because it found the underlying writ of
habeas corpus did not contain a colorable cause of action.
Because the circuit court did not abuse its discretion in
finding that Breeden should not be permitted to proceed, we
evaluating Breeden's petition to proceed in forma
pauperis, the circuit court found that Breeden had
established that he was indigent, but that he did not raise a
cognizable claim. In his habeas petition and on appeal,
Breeden alleges that the writ should issue because his
incarceration was unconstitutional in that he should have
received a lesser sentence as a first-time offender. Breeden
did not attach to his petition the judgment that he
challenged, but he referenced this court's decision in
Breeden v. State, 2013 Ark. 145, 427 S.W.3d 5,
affirming his conviction for the rape of his minor daughter.
support of his claims, Breeden asserts that his life sentence
for rape was in violation of due process and the Eighth
Amendment's prohibition against cruel and unusual
punishment. Breeden points to cases in which juvenile
offenders were held less culpable, and appears to assert that
these are comparable to his case. Breeden asks that his
sentence be vacated and that he be resentenced so that the
"first offender act" could be considered.
Standard of Review
standard of review of a decision to grant or deny a petition
to proceed in forma pauperis is abuse of discretion, and the
circuit court's factual findings in support of its
exercise of discretion will not be reversed unless clearly
erroneous. Whitney v. Guterres, 2018 Ark. 133. An
abuse of discretion occurs when the court acts arbitrarily or
groundlessly. Whitney v. State, 2018 Ark. 138.
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). If the underlying petition clearly
fails to state a colorable cause of action, there has been no
abuse of discretion, and this court may affirm the denial of
in forma pauperis status. Muldrow v. Kelley, 2018
Ark. 126, 542 S.W.3d 856. A colorable cause of action is a
claim that is legitimate and may reasonably be asserted given
the facts presented and the current law or a reasonable and
logical extension or modification of it. Penn v.
Gallagher, 2017 Ark. 283. The decision to deny
Breeden's request for pauper status turned on whether he
pleaded sufficient facts in his habeas petition to support
his claims for habeas relief.
Habeas Relief and Jurisdiction
our statute, a petitioner for the writ who does not allege
his or her 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 or she is being illegally detained.
Garrison v. Kelley, 2018 Ark. 8, at 2, 534 S.W.3d
136, 137 (citing Ark. Code Ann. § 16-112-103(a)(1)
(Repl. 2016)). Assertions of trial error and due-process
violations do not implicate the facial validity of a trial
court's judgment or jurisdiction. Anderson v.
Kelley, 2018 Ark. 222, 549 S.W.3d 913.
Breeden's Bases for the Writ
was charged under Arkansas Code Annotated section 5-14-103
(Supp. 2011), which provides that rape is a Class Y felony.
The statutory sentencing range for a Class Y felony is not
less than ten years and not more than forty years, or life.
Ark. Code Ann. ...