MOTION FOR BELATED APPEAL [LEE COUNTY CIRCUIT COURT, NO.
DAN KEMP, CHIEF JUSTICE.
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 (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).
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. None of the grounds is a basis for the
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
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.
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).
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.
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.
treated as a motion for rule on clerk and dismissed.
Josephine Linker Hart, Justice, Dissenting.
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 ...