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, Atty Gen., by: Brad Newman, Asst Atty Gen., for
K. WOOD, Associate Justice
Appellant 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 Gipsons
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 courts
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
Gipsons 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, 2013 WL 1694909. The Act permits
DNA testing of evidence if testing or retesting can provide
materially relevant evidence that will significantly advance
the defendants 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
petitioners 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. §
Gipsons conviction was entered in October 2012. He filed his
petition in January 2018. Therefore, Gipsons 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 Gibsons assertions of
his actual innocence and his claim of a resulting manifest
injustice. Also, Gipsons 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, 2013 WL 5964649. Act 1780 permits summary
disposition of a petition if it conclusively shows that the
petitioner is entitled to no relief. Ark. Code Ann. §
the circuit court incorrectly found that it did not have
jurisdiction to consider an Act 1780 petition, this court
will affirm the circuit courts 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
Gipsons petition or denying the motion for reconsideration
because the petition was untimely and failed to rebut the
presumption of untimeliness.
Affirmed; motion moot.