SHAWN T. RAINER APPELLANT
WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
MOTIONS TO COMPEL APPELLEE TO PRODUCE FILE-MARKED COPIES AND
TO SUPPLEMENT ADDENDUM [LINCOLN COUNTY CIRCUIT COURT, NO.
R. BAKER, ASSOCIATE JUSTICE
Shawn T. Rainer filed a pro se petition for writ of habeas
corpus in the circuit court of the county where he was
incarcerated, and the circuit court denied and dismissed the
petition. Rainer appealed the order denying his habeas
petition, and he filed pro se motions in which he seeks a
copy of documents from the record on appeal in order to
prepare his brief and some accommodation for the resulting
delay in filing his brief. There is no need for this court to
consider the motions and whether Rainer should be provided a
copy or access to the record because Rainer's habeas
petition was clearly without merit. Accordingly, we dismiss
the appeal, and the motions are moot.
appeal from an order that denied a petition for
postconviction relief, including a petition for writ of
habeas corpus, will not be permitted to go forward when it is
clear, as it is here, that the appellant could not prevail.
Jones v. State, 2019 Ark. 12, 565 S.W.3d 100. Under
the statutes that Rainer invoked in his petition, a writ of
habeas corpus is proper only when a judgment of conviction is
invalid on its face or when a circuit court lacks
jurisdiction over the cause. Bell v. Gibson, 2019
Ark. 127. Rainer did not plead facts to support a basis for
the writ to issue.
alleged in the habeas petition that (1) the trial court
lacked jurisdiction to enter a 2011 Mississippi County
judgment reflecting Rainer's conviction on a charge of
second-degree murder as a habitual offender and (2) the
judgment was facially invalid because he was convicted under
a statute not in effect when the crime was committed. In
support of these claims, Rainer reiterates many of the
allegations that this court addressed in Rainer v.
State, 2019 Ark. 42, 566 S.W.3d 462. In that case,
Rainer sought to proceed with a petition for writ of error
coram nobis, and he contended that the judgment was facially
illegal and void, that it imposed an illegal sentence, and
that the judgment imposed an enhancement under Arkansas Code
Annotated section 5-4-501(a), although the jury was
instructed on an enhancement under Arkansas Code Annotated
section 5-4-501(c). In his habeas petition, as he did in the
previous proceedings, Rainer further alleged ineffective
assistance of counsel, prosecutorial misconduct, and trial
error concerning the amendment of the charging instrument in
conjunction with the sentence imposition.
is correct that in Rainer, this court acknowledged
that the earlier statute was applicable. However, although
Rainer alleged that he was sentenced under Arkansas Code
Annotated section 5-4-501(c) (Supp. 2009), the judgment he
attached to the habeas petition does not indicate a date for
the statute, and as this court noted in Rainer, the
incorrect subsection was a scrivener's error. Clerical
errors do not prevent enforcement of a judgment, and a
circuit court can enter an order nunc pro tunc at any time to
correct clerical errors in a judgment or an order.
Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333;
see also Ratliff v. Kelley, 2018 Ark. 105, 541
S.W.3d 408 (noting that a claim of clerical error did not
factually impact either of the grounds for habeas).
claim that he was sentenced under the statute as amended in
2009 is conclusory and without factual support. More importantly,
even if Rainer was incorrectly sentenced under the later
version of the statute, Act 1395 of 2009 Acts of Arkansas
made no change to the sentencing range in the statute as it
applied to Rainer. See Timmons v. Kelley, 2018 Ark.
361, 562 S.W.3d 824 (holding that ex post facto claim not
alleging the sentence was rendered void or illegal due to the
alleged error does not challenge the facial validity of the
judgment). Despite Rainer's contention that there was no
"serious violent offender" enhancement prior to
passage of the Act, the language in both Arkansas Code
Annotated section 5-4-501(c) (Supp. 2007) and the amended
statute was identical for a punishment enhancement for an
offender who had a previous second-degree murder conviction,
as Rainer had. The sentence imposed was not illegal under
claims of ineffective assistance of counsel are not
cognizable in habeas proceedings. Watson v. Kelley,
2019 Ark. 147. Rainer's claims of prosecutorial
misconduct and trial error concerning amendment of the
information are equally unavailing. Mister v.
Kelley, 2019 Ark. 187, 575 S.W.3d 410; see also
McArthur v. State, 2019 Ark. 220, 577 S.W.3d 385
(holding that a claim of prosecutorial misconduct does not
implicate the facial validity of the judgment or the
jurisdiction of the trial court). Because Rainer's habeas
petition was clearly without merit, he cannot prevail on
dismissed; motions moot.
J., concurs without opinion.
Rainer seeks to require the appellee to
file a supplemental addendum with the missing documents or
permit him to file a supplemental addendum when he receives
In support of his claim that he was
sentenced under the later statute, Rainer appeared to point
to the docket listing that he attached to the habeas petition
and to the fact that the State referenced the later statute
in its brief in Rainer. The docket listing confirmed
the date that Rainer was sentenced but did not reference the
statute for the enhancement, and an incorrect citation by ...