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Russell v. Kelley

Supreme Court of Arkansas

October 17, 2019

Roy Lee RUSSELL, Appellant
v.
Wendy KELLEY, Director, Arkansas Department of Correction, Appellee

          Rehearing Denied December 5, 2019

Page 659

          PRO SE APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT AND MOTION TO SUPPLEMENT RECORD [NO. 09CV-18-186], HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

          Roy Lee Russell, pro se appellant.

         Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

         OPINION

         Karen R. Baker, Associate Justice.

          Appellant Roy Lee Russell 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 that the underlying petition for writ of habeas corpus raised a jurisdictional issue that had already been decided in Russell v. Kelley, 2016 Ark. 224, 2016 WL 3131007. Now before us is Russell’s motion to supplement the record. Because the circuit court did not abuse its discretion in denying the petition and because we have already addressed the issue raised by Russell in a prior appeal, we dismiss the appeal. Anderson v. Kelley, 2018 Ark. 222, 549 S.W.3d 913 (Order denying habeas relief upheld when petitioner had raised issues in his habeas petition that this court had already considered and rejected.). An appeal from an order that denied a petition for postconviction relief, including the denial of 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, 2018 WL 5076670. Russell’s motion is rendered moot by the dismissal of the appeal.

          I. Standard of Review

          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. Morgan v. Kelley, 2019 Ark. 189, 575 S.W.3d 108; Whitney v. Guterres, 2018 Ark. 133, 2018 WL 1957077. 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. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Whitney v. State, 2018 Ark. 138, 2018 WL 1957111.

          Rule 72 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

Page 660

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. Mack v. Kelley, 2018 Ark. 401, 562 S.W.3d 845. The decision to deny Russell’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 proceeding.

          II. Habeas Relief and Jurisdiction

          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. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016); Garrison v. Kelley,2018 Ark. 8, 534 S.W.3d 136. 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). A circuit court has subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes. Love v. Kelley,2018 Ark. 206, 548 S.W.3d 145. The burden is on the petitioner to establish with factual support that he or she is entitled ...


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