PRO SE
MOTION FOR EXTENSION OF TIME TO FILE BRIEF; PRO SE MOTION TO
DUPLICATE AT STATE'S EXPENSE [LINCOLN COUNTY CIRCUIT
COURT, NO. 40CV-18-126]
Shawn
A. Womack, Associate Justice.
Frank
Watts II appeals the circuit court's denial of his
request to proceed in forma pauperis on a petition for writ
of habeas corpus. The circuit court's decision was
premised on Watts's failure to state a colorable cause of
action in his underlying habeas petition. Watts has moved for
an extension of time to file his brief and seeks a duplicate
copy of the record at the State's expense. Because it is
clear from the record that Watts failed to state a colorable
cause of action for habeas relief, we affirm the circuit
court's decision and the motions are therefore moot.
I.
Standard of Review
We
review a decision to grant or deny a petition to proceed in
forma pauperis for abuse of discretion, and the circuit
court's factual findings in support of its exercise of
discretion will not be reversed unless clearly erroneous.
Breeden v. Kelley, 2018 Ark. 299, 557 S.W.3d 264.
The
right to proceed in forma pauperis in civil matters is
conditioned on the petitioner's 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. Watts v. Kelley,
2017 Ark. 189, 520 S.W.3d 249. The circuit court found that
Watts was indigent. Its decision to deny Watts's request
for pauper status turned on his failure to state a colorable
cause of action in the underlying habeas petition.
II.
Watts's Petition for Habeas Relief
A writ
of habeas corpus is proper when a judgment of conviction is
invalid on its face or when a trial court lacks jurisdiction
over the cause. Philyaw v. Kelley, 2015 Ark. 465,
477 S.W.3d 503. Because Watts did not allege actual innocence
and proceed under Act 1780 of 2001, he was required to 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 is illegally detained. See Garrison v. Kelley,
2018 Ark. 8; Ark. Code Ann. § 16-112-103(a)(1) (Repl.
2016). Failure to do so precludes any basis for issuing the
writ. Fields v. Hobbs, 2013 Ark. 416. Moreover,
assertions of trial error and due process violations do not
implicate the validity of a trial court's judgment or
jurisdiction. Ratliff v. Kelley, 2018 Ark. 105, 541
S.W.3d 408.
Following
a 1997 jury trial, Watts was convicted of possession of a
controlled substance with intent to deliver, two counts of
possession of drug paraphernalia, and possession of a
controlled substance. He was given an aggregate sentence of
sixty years' imprisonment as a habitual offender. The
Arkansas Court of Appeals affirmed. Watts v. State,
68 Ark.App. 47, 8 S.W.3d 563 (2000). In 1998, Watts was
convicted of additional felony offenses and sentenced as a
habitual offender to life imprisonment. He failed to timely
appeal that conviction. Watts v. State, CR-00-201
(Ark. Sept. 28, 2000) (unpublished per curiam) (denying
motion for belated appeal).
The
claims raised in Watts's petition for writ of habeas
corpus were previously raised-and rejected-in a separate
habeas petition. See Watts v. State, 2013 Ark. 318
(per curiam). In that petition, as here, Watts alleged that
the 1998 trial court lacked subject matter jurisdiction
because the 1997 trial court had granted his "motion in
limine for joinder of offenses." He argued the
prosecution was thus collaterally estopped from proceeding
with the 1998 trial and made vague references to double
jeopardy. The circuit court dismissed the petition for
failing to state a colorable claim. Id. We agreed
and found that Watts had failed to establish that either
trial court lacked jurisdiction to try and convict him for
the separate offenses. Id. We further noted that
Watts's references to double jeopardy failed to state a
claim for habeas relief because Watts had not alleged or
established that the second commitment order imposed a
facially illegal sentence. Id.
In the
instant case, Watts raised the same claims and factual
allegations for habeas relief that he had raised previously
and that had been clearly rejected by this court.
Id. As with coram nobis petitions, the
abuse-of-the-writ doctrine may apply in habeas proceedings to
subsume res judicata in cases where the petitioner raises the
same arguments addressed previously without bringing forward
additional facts that would support his or her argument.
Anderson v. Kelley, 2018 Ark. 222, at 4 n.3, 549
S.W.3d 913, 915 n.3. Watts's latest iteration of his
claims represents an abuse of the writ. The circuit court did
not abuse its discretion when it held that Watts had failed
to state a colorable claim for habeas relief as the same
claims had been previously addressed and found to be outside
the purview of habeas proceedings.
Affirmed;
motions moot.
Hart,
J., dissents.
Josephine Linker Hart, ...