OTIS D. GIPSON APPELLANT
STATE OF ARKANSAS AND WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEES
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION;
PRO SE MOTION TO SUBMIT BELATED REPLY BRIEF [NO.
60CV-18-3795] HONORABLE TIMOTHY DAVIS FOX, JUDGE
D. Gipson, pro se appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
RHONDAK.WOOD, ASSOCIATE JUSTICE
Otis D. Gipson filed a habeas corpus petition in Lee County
Circuit Court. Although Gipson was incarcerated in Lee
County, that circuit court transferred the petition to
Pulaski County Circuit Court. Upon transfer, the court
dismissed the petition for a lack of jurisdiction. Gipson
appeals. He has also filed a motion seeking to file a belated
reply brief. Because it is clear from our review of
Gipson's petition that he cannot demonstrate error, we
affirm. The motion to file a belated brief is moot.
not reverse a denial of postconviction relief, including a
denial of relief under Act 1780, unless the trial court's
findings are clearly erroneous. McClinton v. State,
2017 Ark. 360, 533 S.W.3d 578. A finding is clearly erroneous
when, although there is evidence to support it, the appellate
court is left with the definite and firm conviction that a
mistake has been committed. Id.
habeas corpus petition alleged his actual innocence and
sought new DNA testing under Arkansas Code Annotated sections
16-112-103 to -123 (Repl. 2016) and Act 1780 of 2001 Acts of
Arkansas, codified at Arkansas Code Annotated sections
16-112-201 to -208 (Repl. 2016) (as amended by Act 2250 of
2005). The circuit court dismissed the petition based on
jurisdiction. However, as the State concedes in its brief,
the Pulaski County Circuit Court, as the court which entered
Gipson's conviction, had jurisdiction to consider his
petition for new scientific testing under Act 1780, which was
the substantive legal authority for his petition. Ark. Code
Ann. § 16-112-201(a); Hill v. Kelley, 2018 Ark.
118, 542 S.W.3d 852 ("A petition for a writ of habeas
corpus alleging entitlement to new scientific testing must be
addressed to the court that entered the conviction.").
1780 provides that a writ of habeas corpus can issue based on
new scientific evidence proving a person actually innocent of
the offense for which he or she was convicted. Pankau v.
State, 2013 Ark. 162. The Act permits DNA testing of
evidence if testing or retesting can provide materially
relevant evidence that will significantly advance the
defendant's claim of innocence in light of all the
evidence presented to the jury. McClinton, 2017 Ark.
360, 533 S.W.3d 578. However, the Act requires the motion be
timely. Ark. Code Ann. § 16-112-202(10). Petitioners who
file for testing more than thirty-six months after the entry
of the judgment must rebut the presumption that the petition
is untimely by showing (1) that the petitioner was or is
incompetent, and the incompetence substantially contributed
to the delay; (2) that the evidence to be tested is newly
discovered; (3) that the motion is not based solely upon the
petitioner's own assertion of innocence, and a denial of
the motion would result in a manifest injustice; (4) that a
new method of technology exists that is substantially more
probative than was the testing available at the time of the
conviction; or (5) other good cause. Ark. Code Ann. §
Gipson's conviction was entered in October 2012. He filed
his petition in January 2018. Therefore, Gipson's request
was outside the thirty-six-month deadline. He did not address
the untimeliness or allege sufficient facts to rebut the
presumption under section 16-112-202(10)(B). Gipson did not
allege incompetence or a new method of technology, and the
petition instead relied squarely on Gibson's assertions
of his actual innocence and his claim of a resulting manifest
injustice. Also, Gipson's petition failed to identify any
specific newly discovered evidence to be tested. The only
evidence he references was previously tested but not admitted
during his trial. See Gipson v. State, 2013 Ark.App.
651. Act 1780 permits summary disposition of a petition if it
conclusively shows that the petitioner is entitled to no
relief. Ark. Code Ann. § 16-112-205(a).
the circuit court incorrectly found that it did not have
jurisdiction to consider an Act 1780 petition, this court
will affirm the circuit court's decision when it reached
the right result, even if it did so for the wrong reason.
Marshall v. State, 2017 Ark. 208, 521 S.W.3d 456.
The circuit court was not clearly erroneous in dismissing
Gipson's petition or denying the motion for
reconsideration because the petition was untimely and failed
to rebut the presumption of untimeliness.
Josephine Linker Hart, Justice, dissenting.
dissent. This court's appellate jurisdiction is
derivative of the circuit court's jurisdiction.
Coleman v. State, 2013 Ark. 152, (per curium);
Gilliland v. State, 2011 Ark. 480 (per curium).
Simply stated, where the circuit court lacks jurisdiction,
the appellate court likewise lacks jurisdiction. Lawrence
v. City of Texarkana, 364 Ark. 466, 221 S.W.3d 370
(2006). Here, the circuit court erroneously concluded that it
lacked jurisdiction over Mr. Gipson's case, which means
that the circuit court failed to act on his petition.
However, while this court had the jurisdiction to decide
whether the circuit court was correct in dismissing this
case, we do not have jurisdiction to decide Mr. Gipson's
petition on the merits.
Arkansas Code Annotated section 16-112-201(a) (Repl. 2016)
states that a habeas petition seeking new scientific testing
shall be filed "in the court in which the conviction was
entered." Obviously, that meant the trial court as Mr.
Gipson's conviction was not "entered" in the
Arkansas Supreme Court. Accordingly, it is unlawful for this
court, on its own motion, to decide Mr. Gipson's petition
on the merits. If the General Assembly had intended to give
this court the authority to decide these actual innocence