APPELLANT'S MOTION FOR EXTENSION OF BRIEF TIME [LINCOLN
COUNTY CIRCUIT COURT, NO. 40CV-18-117] HONORABLE JODI RAINES
Dan Kemp, Chief Justice.
Alonzo Watson appeals the denial of his pro se petition to
proceed in forma pauperis in a habeas
proceeding. The circuit court denied his petition
because it found the underlying petition for writ of habeas
corpus did not contain a colorable cause of action. Now
before us is Watson's motion for extension of time to
file his brief-in-chief. Because the circuit court did not
abuse its discretion in finding that Watson should not be
permitted to proceed at public expense, we dismiss the
appeal. An appeal from an order that denied a petition for
postconviction relief, including civil postconviction
remedies such as habeas proceedings, will not be permitted to
go forward when it is clear that the appellant could not
prevail. Gardner v. Kelley, 2018 Ark. 300, at 2.
Watson's motion is rendered moot by the dismissal of the
evaluating Watson's petition to proceed in forma
pauperis, the circuit court found that he had established he
was indigent but that he did not raise a cognizable claim for
the writ. In his habeas petition, Watson alleged the
following: (1) the trial court erred in allowing the State to
amend the felony information and by permitting invalid
instructions to be given to the jury; (2) while the original
felony information conferred jurisdiction on the trial court,
the amendment of the information removed the trial
court's jurisdiction; (3) there is new scientific
evidence to demonstrate his actual innocence; (4) the
evidence adduced at trial was not sufficient to sustain the
judgment of conviction; (5) he was arrested illegally; (6) he
has obtained the statement of a witness that supports his
(Watson's) decision not to testify at his trial; (7) he
was not afforded effective assistance of counsel at trial.
Although Watson appended a number of documents to the
petition, the claims in the petition, including the assertion
that the trial court lacked jurisdiction in the matter, were
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
Watson's request for pauper status therefore turned on
whether he pleaded sufficient facts in his habeas petition to
support a claim for relief within the purview of a habeas
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. Ark. Code
Ann. § 16-112-103(a)(1) (Repl. 2016); Garrison v.
Kelley, 2018 Ark. 8, 534 S.W.3d 136. The burden is on
the petitioner to establish with factual support that he or
she is entitled to issuance of the writ. Breeden v.
Kelley, 2018 Ark. 299, 557 S.W.3d 264 (A habeas petition
fails to state a colorable cause of action if it does not
state sufficient nonconclusory facts to support cognizable
Watson's Claims for the Writ
assertion of actual innocence and his allegation of newly
discovered scientific evidence that would negate the finding
of guilt in his case are effectively challenges to the
sufficiency of the evidence that are not cognizable in habeas
proceedings not brought under Act 1780. Clay v.
Kelley, 2017 Ark. 294, 528 S.W.3d 836. Moreover, those
claims were brought without factual substantiation or
development from which it could be concluded that the trial
court lacked jurisdiction in the case or that the judgment
was illegal on its face.
respect to the legality of Watson's arrest and his
allegations of trial error, questions pertaining to whether
there was some error in the investigation, arrest, or
prosecution of a criminal offense are not within the purview
of a habeas corpus proceeding unless the error impinges on
the jurisdiction of the court to enter the judgment or the
facial validity of the judgment. Story v. State,
2017 Ark. 358, at 4-5 (noting that the trial court's
jurisdiction to try the accused does not depend on the
validity of the arrest). Any challenge that Watson desired to
raise to the illegality of his arrest or errors in his trial
could and should have been made in the trial court. Habeas
proceedings are not an opportunity to raise, or relitigate,
claims that could have been addressed in the trial court and,
if applicable, on direct appeal from the judgment. A habeas
corpus proceeding does not afford a prisoner an opportunity
to retry his case. Stephenson v. Kelley, 2018 Ark.
143, 544 S.W.3d 44.
allegations of ineffective assistance of counsel are not
within the scope of a habeas proceeding. Barber v.
Kelley, 2017 Ark. 214. The allegations should have been
raised in the petition under Arkansas Rule of Criminal
Procedure 37.1 that he filed in the trial court in
2013. A habeas proceeding is neither a
substitute for filing a timely petition under the Rule nor an
opportunity to ...