Rehearing Denied December 5, 2019
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, Atty Gen., by: Brad Newman, Asst Atty Gen., for
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 Russells 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. Russells
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 courts 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
72 of the Arkansas Rules of Civil Procedure conditions the
right to proceed in forma pauperis in civil matters on
indigency and the circuit courts 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 Russells 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.
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 ...