Jackson v. Kelley ( 2019 )

Hart, J., dissents.

Josephine Linker Hart, Justice, dissenting.

On April 4, 2019, Mr. Jackson filed a motion to dismiss his appeal. In his motion, Mr. Jackson asserted that he had found more evidence to support his claims and new case law to support his arguments. Mr. Jackson requested this dismissal so that he could present this additional evidence and new case law to the circuit court. His motion for additional time to file his brief was filed on March 5, 2019. In that motion, he asserted that his prison work assignment conflicted with the hours of the Varner Unit law library. Yet, inexplicably, the majority has declined to grant Mr. Jackson's motion to dismiss and has instead decided to take his appeal on the merits.

First, until the briefing is complete, all this court has pending before it are Mr. Jackson's motion for an extension of time to file his brief and his motion to dismiss his appeal. Because he has not yet filed his brief, his appeal is not perfected, and we do not have jurisdiction to decide his appeal on the merits.

The majority's dilatory disposition of Mr. Jackson's motions and precipitous decision to decide his appeal on the merits not only denies Mr. Jackson due process, it also utterly defies logic. I cannot understand why the majority chose to leap ahead and deny Mr. Jackson habeas relief when he had apprised the court that he had additional claims that he wished to consolidate at the circuit court level. It has long been settled that when an appellant takes a case to an appellate court, for a review of the judgment of a trial court, the appellant has a right to dismiss the appeal and submit to the judgment, if there is no prejudice to the appellee. Bush v. Barksdale , 122 Ark. 262, 183 S.W. 171 (1916). The State has not filed a response to Mr. Jackson's motion to dismiss.

Finally, the utter futility in the majority's actions is further proven by the fact that if Mr. Jackson has additional claims and new evidence, he is allowed to file a new petition for a writ of habeas corpus in the circuit court without fearing dismissal for abuse of the writ.

I respectfully dissent.