APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT AND MOTION TO
SUPPLEMENT RECORD [NO. 09CV-18-186] HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE
Lee Russell, pro se appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
R. Baker, Associate Justice
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. 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. Russell's motion is rendered
moot by the dismissal of the appeal.
Standard of Review
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. 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.
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 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
Habeas Relief and Jurisdiction
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 to issuance
of the writ. Breeden v. Kelley, 2018 Ark. 299, 557
S.W.3d 264 (A habeas petition fails to state a colorable
cause of action if it does not state sufficient nonconclusory
facts to support cognizable claims.).
Russell's Claim for the Writ
August 8, 2013, Russell was tried and found guilty by a jury
of two felony offenses. The sentences were ordered to be
served consecutively for a total of 660 months'
imprisonment. There was an error in the original sentencing
order, entered August 8, 2013, that misstated the total
length of the sentence to be served, and an amended order was
entered on August 19, 2013, that reflected the correct
sentence. The original order and the amended order were both
signed by retired circuit judge Ted Capeheart, who had been
assigned pursuant to Administrative Order No. 16 to sit for
the regular judge, Sam Pope, for the dates August 7 and 8,
2016, Russell filed a petition for writ of habeas corpus in
the county where he was incarcerated on the ground that the
trial court lacked jurisdiction, and the judgment was invalid
its face because Judge Capeheart signed the amended order
after his authority to do so ended. The habeas petition was
denied, and as stated, this court affirmed the order.
2018, Russell filed the petition to proceed in forma pauperis
and the habeas petition that are at issue in this appeal. He
repeated the claim that the trial court was without
jurisdiction to enter the amended sentencing order on the
grounds that Judge Capeheart had signed it, and it was
entered after Judge Capeheart's authority to act had
ended. As with the 2016 habeas petition, there was no
persuasive precedent presented to ...