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Davis v. Kelley

Supreme Court of Arkansas

January 17, 2019

RICHARD ALAN DAVIS PETITIONER
v.
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT

          PRO SE MOTION FOR BELATED APPEAL [LEE COUNTY CIRCUIT COURT, NO. 39CV-18-29]

          JOHN DAN KEMP, CHIEF JUSTICE.

         Richard Alan Davis seeks leave from this court to proceed with a belated appeal of a circuit court order that dismissed his pro se petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016). Because the record reflects that Davis timely filed a notice of appeal but did not tender the record to this court in a timely manner, we treat the motion as a motion for rule on clerk. Marshall v. State, 2017 Ark. 208, 521 S.W.3d 456[1] (When the notice of appeal was timely filed, but the record was not timely tendered to this court, a motion for belated appeal is treated as a motion for rule on clerk.). Inasmuch as it is clear from the record that Davis could not prevail on appeal if the appeal went forward, the motion is dismissed. An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus, will not be permitted to proceed when the appellant could not prevail. See Hill v. Kelley, 2018 Ark. 118, 542 S.W.3d 852, reh'g denied (May 24, 2018).

         In his habeas petition, Davis contended that the writ should issue because his judgment of conviction entered in 1988 for capital murder, aggravated robbery, and theft of property was obtained in violation of the constitutional provision against self-incrimination, he was denied effective assistance of counsel at trial and in his proceeding under Arkansas Rule of Criminal Procedure 37.1 (1988), and his trial attorney did not perfect an appeal from the judgment of conviction in the case.[2] None of the grounds is a basis for the writ.

         A writ 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. Under 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. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or for seeking postconviction relief. Watkins v. Kelley, 2018 Ark. 215, 549 S.W.3d 908.

         A 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. 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. Collier v. Kelley, 2018 Ark. 170.

         Davis argues that the judgment in his case was illegal on its face and the trial court lacked jurisdiction to enter the judgment because he was not advised by police investigators during interrogations before trial of his right against self-incrimination as required by Miranda v. Arizona, 384 U.S. 436 (1966). The issue concerns factual questions on the admissibility of evidence that could have been raised at trial and addressed there. It is a claim of a constitutional violation and trial error that does not implicate the facial validity of the judgment or the jurisdiction of the trial court. As such, the allegation is not within the purview of a habeas corpus proceeding. Anderson v. Kelley, 2018 Ark. 222, 549 S.W.3d 913, reh'g denied (Aug. 2, 2018); see also Ratliff v. Kelley, 2018 Ark. 105, 541 S.W.3d 408 (noting that assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court).

         With respect to Davis's allegation that he was not afforded effective assistance of counsel, ineffective-assistance-of-counsel claims are not cognizable in habeas proceedings. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). Such allegations are properly raised under Arkansas Rule of Criminal Procedure 37.1. A habeas proceeding is not a substitute for filing a timely petition for postconviction relief or an opportunity to raise the issue again if it has already been considered in a Rule 37.1 proceeding. Barber v. Kelley, 2017 Ark. 214.

         As to Davis's contention that the writ should issue because his attorney failed to pursue a direct appeal from the judgment in his criminal case, the argument does not establish a ground for the writ. Davis's remedy for counsel's failure to pursue a direct appeal was a timely motion for belated appeal. In 2001, Davis filed a motion for belated appeal of the judgment, but it was denied because it was not timely filed within eighteen months of the date the judgment was entered as required by Arkansas Rule of Criminal Procedure 36.9, which was in effect at the time the judgment was entered. Davis v. State, CR-00-899 (Ark. Jan. 18, 2001) (unpublished per curiam). A habeas proceeding does not take the place of a motion for belated appeal timely filed in accordance with the prevailing rules of procedure.

         Motion treated as a motion for rule on clerk and dismissed.

          Hart, J., dissents.

          Josephine Linker Hart, Justice, Dissenting.

         Mr. Davis has not yet perfected his appeal. In fact, he has not even been allowed to file his appeal. Accordingly, this court's jurisdiction is limited to considering his motion for rule on clerk. Thus, while dismissing Mr. Davis's appeal might ...


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