DENVER W. MITCHELL APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE LEE COUNTY CIRCUIT COURT NO. 39CV-18-23]
HONORABLE RICHARD L. PROCTOR, JUDGE
W. Mitchell, pro se appellant.
Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y
Gen., for appellee.
K. WOOD, ASSOCIATE JUSTICE
Denver W. Mitchell appeals the denial of his pro se petition
for a writ of habeas corpus. Mitchell filed his brief and, at
the same time, filed a motion for appointment of counsel.
Because the circuit court's denial was not clearly
erroneous, we affirm, which renders Mitchell's motion for
appointment of counsel moot.
was convicted of first-degree felony murder pursuant to
Arkansas Code Annotated section 5-10-102(a)(1) (1987).
Mitchell appealed and this court affirmed. Mitchell v.
State, 314 Ark. 343, 862 S.W.2d 254 (1993). Mitchell
subsequently filed a petition for a writ of habeas corpus
that was denied. Mitchell v. Kelley, 2016 Ark. 326
(per curiam). Mitchell filed his second pro se petition for a
writ of habeas corpus that was denied and he now appeals.
petitioner for writ of habeas corpus, who does not allege his
or her actual innocence and proceed under Act 1780, must
plead either the judgment is facially invalid or that the
trial court lacked jurisdiction. Williams v. Kelley,
2017 Ark. 200, 521 S.W.3d 104. A circuit court's decision
on a petition for writ of habeas corpus will be upheld unless
it is clearly erroneous. Garrison v. Kelley, 2018
Ark. 8, 534 S.W.3d 136. 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.
contends that he is entitled to habeas relief because the
original information provided that the state was charging him
with capital felony murder with robbery as the underlying
felony, but he alleges he was convicted of first-degree
felony murder with theft as the underlying felony. According
to Mitchell, he was convicted of a crime, theft, for which he
had not been charged. Mitchell attached the trial transcript
that shows the trial court instructed the jury that
first-degree murder required a finding that the murder was
committed in the course and furtherance of the "crimes
of robbery or theft." The jury returned a verdict
convicting Mitchell of first-degree felony, however it is not
in the record whether this was based on robbery or theft.
even if substantiated, claims of a defective information are
not generally cognizable in habeas proceedings but are
treated as trial error. Williams v. Kelley, 2017
Ark. 200, 3, 521 S.W.3d 104, 106; Philyaw v. Kelley,
2015 Ark. 465, 477 S.W.3d 503. Mitchell did not invoke Act
1780, and he failed to make the requisite showing for the
writ to issue. When a petitioner in a habeas proceeding fails
to establish that his claims implicated the jurisdiction of
the trial court or rendered the judgment-and-commitment order
invalid on its face, the petitioner has not stated a basis
for the writ to issue. See Clay v. Kelley, 2017 Ark.
294, 528 S.W.3d 836. Assertions of trial error and
due-process claims do not implicate the facial validity of
the judgment or the jurisdiction of the trial court.
Williams, 2017 Ark. 200, 521 S.W.3d 104. A habeas
corpus proceeding does not afford a prisoner an opportunity
to retry his case, and a writ of habeas corpus will not be
issued to correct errors or irregularities that occurred at
trial. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d
702 (1991). Mitchell's ultimate argument is that the
trial court should not have included theft, in addition to
robbery, as one of the underlying felonies in the jury
instructions since theft was not alleged in the information.
He thus contends that his conviction is invalid. This is a
claim of trial error that does not impact the court's
subject-matter jurisdiction. Birchett v. State, 303
Ark. 220, 221-22, 795 S.W.2d 53, 54 (1990). Mitchell's
claim also would not render his sentence facially invalid.
Mitchell failed to allege a basis for the circuit court to
grant the ...