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
Appellant 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 Rainers 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, 2019 WL 1854731. 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 Rainers 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 scriveners 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 Rainers 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 either statute.
Rainers claims of ineffective assistance of counsel are not
cognizable in habeas proceedings. Watson v. Kelley,
2019 Ark. 147, 2019 WL 2135846. Rainers 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 Rainers habeas
petition was clearly without merit, he cannot prevail on
dismissed; motions moot.
J., concurs ...