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.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE
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,
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 court's 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.
Our 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. 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 Morgan's 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 Morgan's 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
the petitioner's 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
appellee's, to provide hearing transcripts or other
evidence to establish the requisite probable cause for the
writ to issue. See Darrough v. Kelley, 2017 Ark.
314, 530 S.W.3d 332. Without a showing of probable cause,
Morgan's claim, even if it is a cognizable one, was not a
legitimate one. This court will affirm the circuit
court's decision because it reached the right result,
albeit for the wrong reason. Marshall v. State, 2017
Ark. 208, 521 S.W.3d 456.
Director requests that this court impose a strike under
Arkansas Code Annotated section 16-68-607 (Supp. 2017) for
this appeal. Because the Director did not demonstrate that
the instant action was frivolous, malicious, or failed to
state a claim, we hold that no strike is warranted. As noted
above, the underlying habeas petition set out a claim that
fell within those cognizable for the writ, yet it did not
provide an adequate demonstration of probable cause to
support issuance of the writ. The circuit court's order
was incorrect in that regard, and the appeal was therefore
not a frivolous one. See Waller v. Kelley, 2016 Ark.
252, 493 S.W.3d 757.
Josephine Linker Hart, Justice, dissenting.
majority's apparent inability to construe the Arkansas
habeas statute is troubling. It states in pertinent part:
(a)(1) The writ of habeas corpus shall be granted forthwith
by any of the officers enumerated in § 16-112-102(a) to
any person who shall apply for the writ by petition showing,
by affidavit or other evidence, probable cause to believe he
or she is detained without lawful authority, is imprisoned
when by law he or she is entitled to bail, or who has ...