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]
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.
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.
Sup. 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 (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 (1981). 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 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 a
case in which the death sentence was imposed. Id.
Logan's allegations fail to establish any such error.
Accordingly, we deny Logan's request to recall the
mandate.
Motion
denied; petition to allow collateral attack on the judgment
or alternatively to recall the mandate denied.
WOOD
and WOMACK, JJ., concur.
RHONDA
K. WOOD, Justice, concurring.
I
concur because my analysis differs from the majority's. I
agree Logan ...