Hall v. State , 2017 Ark. LEXIS 56 ( 2017 )

Cite as 2017 Ark. 77SUPREME COURT OF ARKANSAS.
No. CR-16-974
Opinion Delivered March 2, 2017
ANDROUS HALL
APPELLANT
PRO SE MOTION FOR EXTENSION
V. OF TIME TO FILE BRIEF
[PHILLIPS COUNTY CIRCUIT
STATE OF ARKANSAS COURT, NO. 54CR-96-271]
APPELLEE
HONORABLE CHALK MITCHELL,
JUDGE
APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 1997, a Phillips County jury found appellant Androus Hall guilty of aggravated
robbery, first-degree battery, and attempted rape. The judgment reflects that an aggregate
sentence of 576 months’ imprisonment in the Arkansas Department of Correction was
imposed. The Arkansas Court of Appeals affirmed. Hall v. State, CR-97-1344 (Ark. App.
Nov. 18, 1998) (unpublished).
On November 10, 2014, Hall filed in the trial court where he had been convicted a
petition for a writ of habeas corpus under Act 1780 of 2001 Acts of Arkansas, as amended
by Act 2250 of 2005 and codified at Arkansas Code Annotated sections 16-112-201 to - 208
(Repl. 2006). On October 27, 2015, Hall filed a pro se motion in this court in which he
asserted that his petition had been deemed denied and he sought to proceed with a belated
appeal of the order denying the petition. We dismissed the motion, finding that Hall’s Act
1780 petition had not been deemed denied and that the petition should be resolved by the
Cite as 2017 Ark. 77trial court. Hall v. State, 2016 Ark. 6, at 1 (per curiam). On July 26, 2016, the trial court
denied the petition as being untimely and otherwise without merit. Hall filed a timely
notice of appeal, and the record was lodged in this court on November 1, 2016.
Pending before this court is Hall’s motion for an extension of time to file his brief.
We need not consider the motion for an extension of time to file the brief because there is
clearly no merit to the appeal. An appeal of the denial of postconviction relief, including
an appeal from an order denying a petition for writ of habeas corpus under Act 1780, will
not be permitted to go forward where it is clear that the appellant could not prevail. Hill v.
State, 2016 Ark. 258, at 2, 493 S.W.3d 754, 755 (per curiam). Because a review of the
habeas petition and the pertinent records related to Hall’s convictions conclusively
demonstrate that he could not prevail, we dismiss the appeal, and the motion seeking an
extension to file a brief is therefore moot.
In his habeas petition, Hall alleged that, at the time of his conviction, the Arkansas
State Crime Laboratory did not possess “a scanning electron microscope.” Hall further
alleged that evidence collected in his criminal trial that was either submitted to the crime
lab or not submitted to the lab should be retested by use of that microscope to discover hair,
skin, and trace DNA evidence. Finally, Hall also attached to his petition a “motion” and
exhibits to the motion. In the motion, Hall alleged that evidence referenced in “Exhibit
A” should be retested. Exhibit A consisted of a partial transcript of defense counsel’s closing
arguments that referenced blood and other specific items examined by the crime lab that
had not connected Hall to the crime.
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Cite as 2017 Ark. 77Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus
can issue based on new scientific evidence proving a person actually innocent of the offense
for which he was convicted. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006); Ark. Code
Ann. § 16-112-201; Girley v. Hobbs, 2014 Ark. 325, at 1–2, 445 S.W.3d 494, 495, (per
curiam). There are a number of predicate requirements that must be met under Act 1780
before a trial court can order that testing be done. See Ark. Code Ann. §§ 16-112-201 to
-203; Davis v. State, 366 Ark. 401, 403, 235 S.W.3d 902, 904 (2006) (per curiam).
Moreover, with the amendments under Act 2250, there are a number of other
predicate requirements that must be met before a court can order testing under the Act.
One of these predicate requirements applies to those petitioners who file a motion for testing
more than thirty-six months after the entry of the judgment of conviction. Ark. Code Ann.
§ 16-112-202(10)(B); Hill, 2016 Ark. 258, at 2, 493 S.W.3d at 755. Hall filed his petition
under the Act in the trial court in 2014, seventeen years after his 1997 conviction, and nine
years after Act 1780 was amended in 2005. Under section 16-112-202(10)(B), Hall was
therefore required to rebut a presumption against timeliness. The presumption against
timeliness may be rebutted by showing (1) that the petitioner was or is incompetent, and
the incompetence substantially contributed to the delay; (2) that the evidence to be tested
is newly discovered; (3) that the motion is not based solely upon the petitioner’s own
assertion of innocence, and a denial of the motion would result in a manifest injustice; (4)
that a new method of technology exists that is substantially more probative than was the
testing available at the time of the conviction; or (5) other good cause. Ark. Code Ann. §
16-112-202(10)(B); Hill, 2016 Ark. 258, at 3–4, 493 S.W.3d at 756.
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Cite as 2017 Ark. 77A review of the trial record demonstrates that no fingerprint evidence was collected
from the crime scene because the victim had indicated that her assailant had worn gloves.
Investigators testified that blood and hair were collected from the scene and that the hair
collected appeared to match the victim’s hair. Moreover, there was no evidence introduced
at trial demonstrating that the blood collected from the crime scene was from a source other
than the victim who had sustained multiple knife wounds in the assault. Investigators further
testified that there were only three items submitted to the crime lab for testing, which
included a length of plastic wrap, the box that contained the plastic wrap, and a plastic bag
that the assailant had placed over the victim’s head. Hair recovered from the plastic bag was
determined to be the victim’s hair, otherwise the crime lab found nothing on these items
that connected Hall with the crimes. There was no indication that any other trace evidence
was found or recovered from these items and retained by the State. The evidence supporting
Hall’s conviction was the testimony of the victim who positively identified Hall as the
assailant. The jury was aware at the time of Hall’s conviction that no fingerprint or other
trace evidence had been discovered to connect him with the crimes.
In his petition, Hall referenced an electron microscope that he alleged was not in the
possession of the crime lab at the time of his trial. However, he failed to provide sufficient
factual substantiation for this allegation that the microscope was not available. In any event,
even assuming that this microscope was not available at the time of his trial, Hall failed to
establish that this technology would have been substantially more probative than the testing
available at his trial. Ark. Code Ann. § 16-112-202(3); Hill, 2016 Ark. 258, at 4, 493
S.W.3d at 756–57. Secondly, Act 1780 authorizes testing of items shown to have been
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Cite as 2017 Ark. 77secured, tested, and maintained by the crime lab. Ark. Code Ann. § 16-112-202(1)(4); Hill,
2016 Ark. 258, at 4, 493 S.W.3d at 756–57. Based on the trial record, Hall failed to
demonstrate that such items are even available for further testing in that there was no
demonstration that fingerprints or any trace evidence had been found on the plastic-wrap
box or other items collected from the crime scene, other than the victim’s own hair and
blood. In sum, Hall did not demonstrate that the proposed testing would provide new
material evidence that would have supported his defense and would have raised a reasonable
probability that Hall did not commit the offenses. Ark. Code Ann. § 16-112-202(8)(A)–
(B); Hall, 2013 Ark. 516, at 3–4.
Dismissal of the petition was also proper because it was not timely filed, and Hall did
not rebut the presumption against timeliness by establishing his incompetence, the existence
of newly discovered evidence, or that the denial of his petition would result in a manifest
injustice. Douthitt, 366 Ark. at 581, 237 S.W.3d at 78. Moreover, it is clear that the petition
was based solely on Hall’s own assertion of his innocence, and, as stated above, he failed to
show that a new technology has become available that is substantially more probative than
the testing that was available at the time of his trial. Id. Hall provided no other good cause
as a basis to rebut the timeliness presumption. Ark. Code Ann. § 16-112-202(10)(B). The
trial court did not clearly err when it determined that Hall’s petition was untimely and not
meritorious. Cooper v. State, 2013 Ark. 180, at 2 (per curiam) (The applicable standard for
review of an order denying postconviction relief dictates that this court does not reverse the
order unless the trial court’s findings are clearly erroneous.).
Appeal dismissed; motion moot.
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