Joe E. MORGAN, Appellant
Wendy KELLEY, Director, Arkansas Department of Correction, Appellee
APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT [NO.
40CV-18-26], HONORABLE JODI RAINES DENNIS, JUDGE
HUDSON GOODSON, Associate Justice
Appellant Joe E. Morgan is an inmate serving an aggregate
sentence of sixty years in a unit of the Arkansas Department
of Correction ("ADC") for convictions on charges of
rape and first-degree sexual assault entered on a negotiated
guilty plea. Morgan filed a petition for writ of habeas
corpus in the county where he was incarcerated, and the
circuit court entered an order that denied Morgan leave to
proceed in forma pauperis on the petition. Morgan appealed
the order, and briefs were filed.
appellee, who is the director (Director) of the ADC, noted in
her brief that the petition for leave to proceed in forma
pauperis that was the subject of the order was not contained
in the record. Morgan sought a writ of certiorari to bring up
the missing petition, which was not contested by the Director
and which this court granted by per curiam order on October
18, 2018, with directions for supplemental briefing following
return of the supplemental record containing the missing
petition. The supplemental record was returned with an
affidavit from the circuit clerk stating that she had
verified that no petition to proceed in forma pauperis is
contained in the record, other than the petition to proceed
as a pauper on appeal. There is no need for further
briefing, and we affirm.
Arkansas Rule of Civil Procedure 72 (2017) is our procedural
rule concerning civil suits filed by a complainant who
desires to proceed as a pauper. Under Rule 72, the right to
proceed in forma pauperis in civil matters is conditioned on
a finding of indigency and the circuit courts satisfaction
that the alleged facts indicate "a colorable cause of
action." Ark. R. Civ. P. 72(c). 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.
Breeden v. Kelley, 2018 Ark. 299, 557 S.W.3d 264.
standard of review of a decision to grant or deny a petition
to proceed in forma pauperis is abuse of discretion, and the
circuit courts factual findings in support of its exercise
of discretion will not be reversed unless clearly erroneous.
Whitney v. Guterres, 2018 Ark. 133, 2018 WL 1957077.
An abuse of discretion occurs when the court acts arbitrarily
or groundlessly. Breeden, 2018 Ark. 299, 557 S.W.3d
264. 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. Id.
circuit court found sufficient evidence that Morgan was
indigent, but that he failed to allege a matter cognizable in
a petition for the writ. Although the Director appears to
contend that Morgan only argues the actual merits of the
habeas petition, Morgan asserts on appeal that he did allege
sufficient facts to support a cognizable claim in that he
alleged that the trial court did not have authority to enter
the judgment if he failed to make a guilty plea in open court
and that the claim he made in the habeas petition was one
that could reasonably be asserted given a reasonable and
logical extension or modification of current law. He contends
his claim was that the sentence imposed was void and illegal
because he did not in fact enter a guilty plea and that, as
such, it should be cognizable in proceedings for the writ.
claims in Morgans habeas petition were not sufficient to
support his allegations of a colorable cause of action, but
not because the claims he identified were not cognizable in
proceedings 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. 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. Garrison v.
Kelley, 2018 Ark. 8, 534 S.W.3d 136 (citing Ark. Code
Ann. § 16-112-103(a)(1) (Repl. 2016)).
addressing the actual merits of his arguments, it is clear
that Morgans claim that was set out in the petition and in
which he disputes the fact that he entered a guilty plea in
open court— contrary to the notation on the judgment
that he had entered a plea— is indeed one that the
trial court exceeded its authority in entering the judgment
and therefore lacked jurisdiction to enter the
judgment. See Elms v. State,
299 Ark. 419, 773 S.W.2d 89 (1989). Yet Morgan nevertheless
failed to present a colorable cause of action because his
pleading did not satisfy the additional requirement under the
statute that he make a showing of probable cause.
the petitioners burden to establish probable cause to
establish that the writ should issue. Anderson v.
Kelley, 2018 Ark. 222, 549 S.W.3d 913. Morgan takes the
position that because he set out sufficient facts to
establish the claim and he avers he did not appear before the
court to make a plea, he has met this burden. He asserts that
the Director must come forward with proof. While Morgan is
correct that he need not prove his case at this point in the
proceedings, he must nevertheless
provide more than a bare assertion in his pleadings, and it
is his burden, not the appellees, to provide hearing
transcripts or other evidence to establish the requisite
probable cause for the writ to issue. SeeDarrough v. Kelley,2017 Ark. 314, 530 S.W.3d 332.
Without a showing of probable cause, Morgans claim, even if
it is a cognizable one, was not a legitimate one. This court
will affirm the circuit courts decision because it ...