Girley v. Hobbs , 2014 Ark. LEXIS 424 ( 2014 )

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ARKANSAS SUPREME COURT
No. CR-13-504
Opinion Delivered July 31, 2014
JAMES GIRLEY PRO SE APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT
[NO. 60CR-98-461]
V.
HONORABLE HERBERT T. WRIGHT,
RAY HOBBS, DIRECTOR, ARKANSAS JUDGE
DEPARTMENT OF CORRECTION
APPELLEE
AFFIRMED.
PER CURIAM
In 1998, appellant James Girley was found guilty of rape by a jury in the Pulaski County
Circuit Court and sentenced to 300 months’ imprisonment. The Arkansas Court of Appeals
affirmed as modified.1 Girley v. State, CR-98-1108 (Ark. App. Mar. 24, 1999) (unpublished)
(original docket no. CACR 98-1108).
In 2013, appellant filed in the trial court a pro se petition for writ of habeas corpus
pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208
(Repl. 2006). Act 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; Biggs v. State, 2013 Ark. 162 (per curiam); Strong v. State, 2010 Ark. 181, 372 S.W 3d
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The judgment, entered erroneously, reflected a sentence of 400 months’ imprisonment.
The court of appeals modified the sentence to the correct sentence of 300 months’
imprisonment and directed the trial court to enter an order reflecting the modification.
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758 (per curiam).
The generally applicable standard of review of an order denying postconviction relief
dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous,
although issues concerning statutory interpretation are reviewed de novo. Cooper v. State, 2013
Ark. 180 (per curiam) (citing Echols v. State, 2010 Ark. 417, 373 S.W.3d 892). An abuse-of-
discretion standard applies when the statute allows the trial court to exercise discretion. Cooper,
2013 Ark. 180; see Horn v. State, 2010 Ark. 496, 372 S.W.3d 809. A finding is clearly erroneous
when, although there is evidence to support it, the appellate court, after reviewing the entire
evidence, is left with the definite and firm conviction that a mistake has been committed. Cooper,
2013 Ark. 180; Pitts v. State, 2011 Ark. 322 (per curiam). An abuse of discretion occurs when the
circuit court acts arbitrarily or groundlessly. Guy v. State, 2011 Ark. 305 (per curiam).
In his petition under the statute, appellant contended that there was scientific evidence
in the form of DNA testing not available at the time of his trial that was more probative than
earlier DNA testing methods and that could establish his actual innocence. He identified the
testing as “short tandem repeat techniques.” He asserted that the State is in possession of DNA
evidence from the sexual-assault kit from the medical examination of the rape victim that
supports his claim of innocence and should be compared to his DNA. He further claimed that
the request for the DNA testing was timely under the statute because (1) he was incompetent
to make the request earlier, (2) perjured scientific evidence was introduced at his trial, and (3)
the sexual-assault kit was not introduced into evidence at trial and is thus “newly discovered
evidence.”
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The trial court held that the petition was untimely, citing Hamm v. Office of Child Support
Enforcement, 336 Ark. 391, 985 S.W.2d 742 (1999), a case in which there was testimony pertaining
to the use of short-tandem-repeat technology in a paternity dispute at about the time of
appellant’s trial. The trial court concluded that the Hamm case indicated that such technology
had been in use since at least 1999 and was not new technology. The trial court also held that
the petition failed to state factual support for the claim that his incompetence was the cause of
the delay in bringing the petition.
On appeal, appellant argues that the evidence from the sexual-assault kit was suppressed
by the prosecution in violation of Brady v. Maryland, 373 U.S. 83 (1963), and that the suppression
of the evidence excuses the delay in his raising the claim for DNA testing using the short-
tandem-repeat technology. He also repeats the arguments raised in the petition as further
grounds for reversal of the trial court’s order denying the relief sought. We find no reversible
error.
Before a circuit court can order testing under the statute, there are a number of predicate
requirements that must be met. King v. State, 2013 Ark. 133 (per curiam); see Ark. Code Ann. §
16-112-202. One of these predicate requirements is that the petition must be filed in a timely
fashion. Ark. Code Ann. § 16-112-202(10). In 2005, the statute was amended to include a
rebuttable presumption against timeliness for any petition filed more than thirty-six months after
the entry of the judgment of conviction. Id. This 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)
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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) for other good cause. Ark. Code Ann. § 16-112-202(10)(B)(i)–(v).
In the instant case, appellant filed his pleadings in the trial court approximately fifteen
years after the judgment-and-commitment order had been entered of record and approximately
seven years after section 16-112-202 had been amended to include the 36-month limitation. He
failed to state any basis to rebut the presumption against timeliness.
First, the claim of a Brady violation is raised for the first time in this appeal. For that
reason, we will not consider it. If the issue was not raised in the petition, the trial court did not
have the opportunity to rule on the issue, and this court will not consider issues on which there
was no ruling below or arguments in support of a claim that are advanced for the first time on
appeal. See Williams v. State, 2013 Ark. 375 (per curiam); Green v. State, 2013 Ark. 455 (per
curiam).
With respect to the claims that were raised below pertaining to the timeliness of the
petition, appellant offered no factual support in his petition for the assertion that his
incompetence caused him to delay filing his petition seeking short-tandem-repeat DNA testing.
He also offered no proof that the technology was not available at the time of his trial or that
there was any other good cause for his failure to raise his claim under the statute within the
thirty-six-month window allowed by the statute. Because appellant failed to rebut the
presumption against timeliness in Arkansas Code Annotated section 16-112-202(10), the trial
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court did not err in declining to order the DNA testing requested.
Affirmed.
James Girley, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
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