APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO. 40CV-18-4],
HONORABLE JODI RAINES DENNIS, JUDGE.
Timmons, pro se appellant.
Rutledge, Att'y Gen., by: Robert T. James, Ass't
Att'y Gen., for appellee.
F. WYNNE, ASSOCIATE JUSTICE.
Henry Timmons appeals the denial of his pro se petition for
leave to proceed in forma pauperis on a petition for writ of
habeas corpus. Because it is clear from the record that
Timmons's cause of action cannot proceed as a matter of
law, we affirm.
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,
petition for cert. filed (U.S. Aug. 24, 2018 (No.
18-5891)). An abuse of discretion occurs when the court acts
arbitrarily or groundlessly. Whitney v. State, 2018
Rule of Civil Procedure 72 (2017) 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). 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 circuit court must first make a specific
finding of indigency based on the petitioner's affidavit
before addressing whether the petitioner has stated a
colorable cause of action. Ark. R. Civ. P. 72(c). The
determination of a colorable claim is then made from an
evaluation of the petitioner's nonconclusory factual
allegations because under this court's rules of civil
procedure, allegations in a pleading must state facts and not
mere conclusions in order to entitle the pleader to relief.
Ballard Grp., Inc. v. BP Lubricants USA, Inc., 2014
Ark. 276, at 6, 436 S.W.3d 445, 449 (citing Ark. R. Civ. P.
circuit court found that Timmons had presented sufficient
evidence to establish that he was indigent. The circuit court
then found that Timmons had failed to allege a matter
cognizable in a habeas petition and had not presented a
colorable cause of action. The court did not identify the
allegations that Timmons made or explain why it concluded
that those allegations, as a matter of law, were not
sufficient to support a claim for the writ. Nevertheless, it
is unnecessary for us to remand the case, because it is clear
from the record that Timmons's cause of action cannot
proceed as a matter of law. See Ashby v. State, 2017
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. A petitioner for the writ who does
not allege his actual innocence and proceed under Act 1780 of
2001 Acts of Arkansas 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 illegally detained. Ark.
Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the
petitioner in proceedings for a writ of habeas corpus can
show that the trial court lacked jurisdiction or that the
commitment was invalid on its face, there is no basis for
finding that a writ of habeas corpus should issue. Fields
v. Hobbs, 2013 Ark. 416.
was convicted of a rape that occurred in February 1983.
Timmons alleges that he was sentenced as a habitual offender
under Act 409 of 1983, which was not in effect at the time
the offense was committed, and that the application of the
Act to him was ex post facto, rendering the sentencing order
illegal due to a lack of jurisdiction. He does not, however,
contend that his sentence was rendered void or illegal due to
this alleged error, and his ex-post-facto claim does not
implicate the subject-matter jurisdiction of the trial court.
Timmons's ex-post-facto claim does not challenge the
facial validity of the judgment, nor does it demonstrate a
lack of jurisdiction by the trial court. As such, it is not
cognizable in a petition for habeas-corpus relief. See
Burgie v. Hobbs, 2013 Ark. 360 (per curiam).
Josephine Linker Hart, Justice, dissenting.
circuit court, in rejecting Mr. Timmons's petition to
proceed in forma pauperis did not make the findings required
by Rule 72 of the Arkansas Rules of Civil Procedure.
Accordingly, this case must be remanded to the circuit court
to make adequate findings. Rea v. Kelley, 2018 Ark.
329, __S.W.3d__; Gardner v. Kelley, 2018 Ark. 212,
549 S.W.3d 349; Wood v. State, 2017 Ark. 290. The
majority is simply wrong when it ignores ...