McArthur v. State

          Rehearing Denied August 1, 2019

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          PRO SE APPEAL FROM THE LEE COUNTY CIRCUIT COURT; PRO SE MOTION FOR DEFAULT JUDGMENT [NO. 39CV-18-14], HONORABLE CHALK S. MITCHELL, JUDGE

          Steven L. McArthur, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.

         OPINION

         KAREN R. BAKER, Associate Justice

          Appellant Steven L. McArthur brings this appeal from the denial of his pro se petition for writ of habeas corpus.^[1] Also

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pending is McArthur’s motion for default judgment. In 1991 a jury found McArthur guilty of capital murder in the death of Rodney Spence. He was sentenced to life imprisonment without parole. We affirmed. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

         In 2018, McArthur filed a pro se petition for a writ of habeas corpus in the county where he is incarcerated and raised the following grounds for relief: (1) that new evidence has emerged consisting of affidavits executed by his accomplice, Donald Hawley, and two alleged witnesses to the crime; (2) that based on the information set forth in these affidavits, McArthur is actually innocent of capital murder; (3) that material evidence was withheld at his trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (4) that the sheriff conspired to submit false testimony and evidence; (5) that the prosecutor was guilty of misconduct for presenting false testimony at McArthur’s trial; (6) that the trial court committed judicial misconduct by allowing the prosecutor to present false testimony; (7) that his trial counsel was ineffective; (8) that the trial court lacked jurisdiction due to a violation of his right to speedy trial and that the judgment of conviction for capital murder is illegal on its face because it does not include a conviction for the underlying felony of aggravated robbery; (9) that the State failed to appoint a second attorney in McArthur’s capital-murder case; (10) that the prosecutor waived the death penalty without McArthur’s permission; (11) that McArthur was not provided with access to a law library while he was in custody awaiting trial.^[2]

         The circuit court found that the habeas petition was untimely and without merit. On appeal, McArthur essentially reasserts the same grounds for relief that he raised below and which are set forth above, with the exception of his claims based on ineffective assistance of counsel, failure to appoint a second attorney, and waiver of the death penalty. Claims that are raised below but have not been reasserted on appeal are considered abandoned. Ratliff v. Kelley, 2018 Ark. 105, 541 S.W.3d 408.

          A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Garrison v. Kelley, 2018 Ark. 8, 534 S.W.3d 136. 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. This court may affirm a circuit court when it has reached the right decision, albeit for the wrong reason, so long as the issue was raised and a record was developed below. Ark. State Bd. of Election Comm’rs v. Pulaski Cty. Election Comm’n, 2014 Ark. 236, 437 S.W.3d 80. Because the circuit court did not clearly err when it found that McArthur’s petition for a writ of habeas corpus was without merit, we affirm. Accordingly, McArthur’s motion for default judgment is denied.

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          A petitioner for a writ of habeas corpus 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, 2018 Ark. 8, 534 S.W.3d 136. 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. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris,369 Ark. 405, 255 S.W.3d 466 (2007). If a petitioner for habeas relief fails ...