Airsman v. Wright , 2016 Ark. LEXIS 235 ( 2016 )

Cite as 2016 Ark. 297
SUPREME COURT OF ARKANSAS.
No. CR-16-367
DON AIRSMAN, JR. Opinion Delivered July 21, 2016
PETITIONER
PRO SE PETITION FOR WRIT OF
V.
MANDAMUS
[HEMPSTEAD COUNTY CIRCUIT COURT,
HONORABLE RANDY WRIGHT,
NO. 29CR-12-164]
JUDGE
RESPONDENT
PETITION DENIED.
PER CURIAM
In 2013, petitioner Don Airsman, Jr., was convicted of first-degree murder and
received a life sentence with an enhancement of 180 months’ imprisonment. This court
affirmed the judgment. Airsman v. State, 2014 Ark. 500, 451 S.W.3d 565. In 2015, Airsman
filed a pro se petition for postconviction relief under Arkansas Rule of Criminal Procedure
37.1 (2015), which the trial court denied. This court affirmed the denial of postconviction
relief. Airsman v. State, 2015 Ark. 409, 473 S.W.3d 549 (per curiam). Following that
decision, Airsman filed a second petition for postconviction relief in the trial court, which
the trial court denied and dismissed.
Airsman now brings this pro se petition for writ of mandamus in which he appears
to request this court to direct the Honorable Randy Wright, Circuit Judge, to file and sign
documents concerning an appeal of the order denying and dismissing his second Rule 37.1
petition. He requests that Judge Wright be directed to “explain” to this court so that he is
Cite as 2016 Ark. 297
“not penalized on time restraints” and may pursue an appeal of the order denying the Rule
37.1 petition. We deny the mandamus petition.
An applicant for an extraordinary writ such as mandamus carries the burden to
demonstrate that the relief he seeks is merited. Lonoke Cty. v. City of Lonoke, 2013 Ark.
465, 430 S.W.3d 669. The purpose of a writ of mandamus is to enforce an established right
or to enforce the performance of a duty by a public official. Veverka v. Gibson, 2013 Ark.
59. When requesting a writ, a petitioner must show a clear and certain right to the relief
sought and the absence of any other remedy. Id.
Airsman has not clearly established a duty that Judge Wright failed to perform. To
the extent that he would have this court direct Judge Wright to file any documents, that
duty is the circuit clerk’s and not Judge Wright’s. See Meraz v. State, 2010 Ark. 121 (per
curiam). An action to compel the circuit clerk to perform a duty is properly pursued in
circuit court. Grant v. Reynolds, 2014 Ark. 100 (per curiam). To the extent that Airsman
is contending that Judge Wright has failed to rule on a pleading or petition he filed, Airsman
has not identified the document. Judge Wright ruled on the only pleading contained in the
record before this court—the second Rule 37.1 petition. 1 Airsman appears to contend that
Judge Wright has failed to act on a pleading Airsman filed in connection with an appeal of
the denial of postconviction relief, but, if so, that pleading is not contained in the record
before this court. 2 Airsman has the burden to bring up a record sufficient for this court to
1
The record contains the sentencing order, the November 12, 2015 Rule 37.1
petition, the order denying that petition, and a notice of appeal as to an earlier order.
2
Judge Wright’s response to the mandamus petition includes as attachments a notice
of appeal for the order in the record before us and a petition to proceed in forma pauperis
2
Cite as 2016 Ark. 297
grant relief. Spearman v. State, 2013 Ark. 196, 427 S.W.3d 593. As to Airsman’s claim that
Judge Wright has an obligation to provide this court with an explanation for any delay or
for Airsman’s failure to meet time obligations regarding an appeal, we are unaware of any
duty imposed by the rules of procedure in that regard at this juncture, and Airsman points
to none.
Petition denied.
filed by Airsman. Judge Wright contends that, even if these were the documents that
Airsman wished to have him rule on, he has now entered an order on the petition granting
Airsman status as a pauper on appeal.
3