Logan v. State

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         PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR POST-CONVICTION RELIEF AND MOTION FOR PERMISSION TO REPLY TO THE RESPONDENT’S RESPONSE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-86-100& 04CR-86-125]

         OPINION

         JOSEPHINE 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.^[1] Alternatively, Logan requests that this court recall the mandate for his two convictions. In addition to Logan’s petition, he has tendered a response to the State’s response and filed a motion asking this court to allow him to file it. We deny Logan’s motion to respond to the State’s response and deny Logan’s petition.

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          In 1989, this court affirmed Logan’s 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 Logan’s direct appeals, the Federal District Court for the Eastern District of Arkansas declared unconstitutional the statute under which Logan’s arrest warrant was issued. This issue was not addressed in either of Logan’s direct appeals, one of which involved a life sentence.

         Before 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).

         We first consider Logan’s motion to file his tendered response to the State’s 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 it.

         Turning to the merits of Logan’s 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 clerk’s 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).

          More importantly for our analysis, even if it was found that Logan’s 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 court’s 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.

         Logan 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 identified

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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.

          We 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 ...