PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR POST-CONVICTION RELIEF AND MOTION FOR
PERMISSION TO REPLY TO THE RESPONDENTS RESPONSE BENTON
COUNTY CIRCUIT COURT [NOS. 04CR-86-100& 04CR-86-125]
LINKER HART, Justice
Petitioner Rick Logan seeks permission to proceed in the
trial court with a petition under Arkansas Rule of Criminal
Procedure 37.1 (1989). He argues that he is entitled to
collaterally attack his conviction because the Arkansas
statute under which his arrest warrants were issued was
subsequently declared unconstitutional by Fairchild v.
Lockhart, 675 F.Supp. 469 (1987), and the Arkansas
Supreme Court failed to address the issue pursuant to
Arkansas Statutes Annotated sections 43-2725 to 43-2725.2,
currently codified at Arkansas Code Annotated section
16-91-113. Alternatively, Logan requests that
this court recall the mandate for his two convictions. In
addition to Logans petition, he has tendered a response to
the States response and filed a motion asking this court to
allow him to file it. We deny Logans motion to respond to
the States response and deny Logans petition.
1989, this court affirmed Logans two convictions. Logan
v. State, 300 Ark. 35, 776 S.W.2d 341 (1989)(single
count of rape and a life sentence) and Logan v.
State, 299 Ark. 266, 773 S.W.2d 413 (1989)(affirming six
of seven counts of rape and reducing one conviction to
third-degree carnal abuse, with consecutive forty-year
sentences). During the pendency of Logans direct appeals,
the Federal District Court for the Eastern District of
Arkansas declared unconstitutional the statute under which
Logans arrest warrant was issued. This issue was not
addressed in either of Logans direct appeals, one of which
involved a life sentence.
July 1, 1989, Rule 37.2 of the Arkansas Rule of Criminal
Procedure required a petitioner that had directly appealed a
conviction to petition this court for permission to file a
Rule 37 petition. Ark. R. Crim. P. 37.2 (1986). Furthermore,
such a petition had to be filed within three years of the
date of commitment, unless the grounds for relief would
render the judgment of conviction void. Travis v.
State, 286 Ark. 26, 688 S.W.2d 935 (1985).
first consider Logans motion to file his tendered response
to the States response. We note that our rules do not
expressly contemplate the filing of a response to a response
in motion practice before this court. However, generally with
regard to responses, our rules provide that all responses
must be filed within ten calendar days. Ark. S.Ct. R. 2-1(d).
The State filed its response on July 22, 2019, and Logan did
not tender his response until August 8, 2019. Logan has not
persuaded us that he should be exempted from the time
requirement of Rule 2-1(d). Accordingly, we decline to accept
to the merits of Logans petition, we conclude that his
reliance on Fairchild is unavailing. As the State
notes, this court in Davis v. State, 293 Ark. 472,
474, 739 S.W.2d 150, 151 (1987), stated that
Fairchild found that an arrest warrant must be
issued by a detached, neutral officer who makes an
independent determination of probable cause and, thus, an
Arkansas statute that allowed the clerk of the court to issue
an arrest warrant based on a supporting affidavit was
unconstitutional. However, the Fairchild analysis
further requires an assessment of whether the affidavit
accompanying the warrant supported a finding of probable
cause or whether an officer could nonetheless rely on the
clerks determination in accordance with a good-faith
exception as articulated in United States v. Leon,
468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
importantly for our analysis, even if it was found that
Logans arrest was illegal, it does not follow that his
charges should be dismissed. State v. Block, 270
Ark. 671, 672, 606 S.W.2d 362, 362 (1980). The Block
court reversed a circuit courts dismissal of charges when it
was shown that the defendant was arrested without a warrant.
Id. It called the proposition that a criminal
"should go scot free" based on the lack of an
arrest warrant "unthinkable[.]" 270 Ark. at 672,
606 S.W.2d at 362. While the Block court recognized
that suppression of evidence seized pursuant to an illegal
warrantless arrest was a possible consequence, Logan has not
alleged that was required in his case. We hold that the error
alleged by Logan is not a ground so basic that the judgment
is a complete nullity. Travis, supra.
further alleges that, even if he is not entitled to relief
under Rule 37, he is entitled to some form of relief for the
constitutional violation. He contends that, in the case in
which a life sentence was imposed, this court should have
the defective warrant in its mandatory review of "all
errors prejudicial to the appellant" and that this court
is bound to recall its mandate because he did not receive a
fair trial, he received a life sentence, and there are
extraordinary circumstances because no objection at trial was
possible when the federal district court had not yet found
the warrant procedures in Arkansas to be unconstitutional.
hold that Logan fails to establish any basis for this court
to recall its mandate. We will recall the mandate only in the
most extraordinary circumstances. Key v. State, 2019
Ark. 202, 575 S.W.3d 554. For example, to establish the
extraordinary circumstances required, we consider (1) the
presence of a defect in the appellate process, (2) whether
federal court proceedings have been dismissed because of an
unexhausted state court claim, and (3) whether this is a
death-penalty case requiring heightened scrutiny.
Id. A defect in the appellate process is an error
alleged to have been made by this court while reviewing ...