Benton v. State , 2013 Ark. 385 ( 2013 )

Cite as 2013 Ark. 385SUPREME COURT OF ARKANSAS
No. CV-13-526
Opinion Delivered October 3, 2013
GARY W. BENTON PRO SE APPELLANT’S MOTIONS
APPELLANT FOR EXTENSION OF TIME TO FILE
BRIEF AND FOR APPOINTMENT OF
V. COUNSEL [LEE COUNTY CIRCUIT
COURT, 39CV-13-13, HON. L.T. SIMES,
STATE OF ARKANSAS JUDGE]
APPELLEE
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 2010, appellant Gary W. Benton was found guilty by a jury of second-degree forgery
and theft by receiving. He was sentenced as a habitual offender to an aggregate term of 360
months’ imprisonment. On appeal, appellant argued that there was insufficient corroboration
to support the conviction for forgery in the second degree and insufficient evidence to sustain
the theft-by-receiving judgment. The Arkansas Court of Appeals found no merit to the
arguments and affirmed. Benton v. State, 2012 Ark. App. 71, 388 S.W.3d 488.
In 2013, appellant, who was incarcerated at a unit of the Arkansas Department of
Correction located in Lee County, filed a pro se petition for writ of habeas corpus in the Lee
County Circuit Court.1 In the petition, he repeated the arguments raised on appeal. He further
argued at length that the evidence adduced at his criminal trial was insufficient to sustain either
of the judgments of conviction and that the trial court committed errors by denying certain
1
As of the date of this opinion, appellant remains incarcerated in Lee County.
Cite as 2013 Ark. 385motions and admitting inadmissible evidence. He also appeared to suggest that the Arkansas
Court of Appeals erred in affirming the judgment. The circuit court denied the habeas petition,
and appellant lodged an appeal of that order in this court. Now before us are appellant’s
motions for extension of time to file his brief-in-chief and for appointment of counsel.
We dismiss the appeal, and the motions are moot, inasmuch as it is clear from the record
that appellant could not prevail on appeal. An appeal of the denial of postconviction relief,
including an appeal from an order that denied a petition for writ of habeas corpus, will not be
permitted to go forward where it is clear that the appellant could not prevail. Roberson v. State,
2013 Ark. 75 (per curiam); Williams v. Norris, 2012 Ark. 30 (per curiam); Russell v. Howell, 2011
Ark. 456 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam).
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its
face or when a circuit court lacked jurisdiction over the cause. Abernathy v. Norris, 2011 Ark. 335(per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). The burden is on the petitioner
in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the
commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of
habeas corpus should issue. Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam).
The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a
“showing by affidavit or other evidence [of] probable cause to believe” that he is illegally
detained. Id. at 221, 226 S.W.3d at 798.
The allegations raised by appellant constituted challenges to the sufficiency of the
evidence, the trial court’s rulings made in the course of the trial, and the decision of the court
2
Cite as 2013 Ark. 385of appeals rendered on direct appeal. The claims did not call into question the trial court’s
jurisdiction or the facial validity of the judgment-and-commitment order. Assertions of trial
error do not implicate the facial validity of the judgment or the jurisdiction of the trial court.
Bliss v. Hobbs, 2012 Ark. 315 (per curiam); see also McHaney v. Hobbs, 2012 Ark. 306 (per curiam)
(due-process allegations are not cognizable in a habeas proceeding). Claims pertaining to the
sufficiency of the evidence and admissibility of evidence are not cognizable in a habeas
proceeding. Craig v. Hobbs, 2012 Ark. 218 (per curiam).
Jurisdiction is the power of the court to hear and determine the subject matter in
controversy. Bliss, 2012 Ark. 315; Culbertson v. State, 2012 Ark. 112 (per curiam). A circuit court
has subject-matter jurisdiction to hear and determine cases involving violations of criminal
statutes. Id. Mere trial error does not deprive a court of jurisdiction. Culbertson, 2012 Ark. 112;
Tryon v. Hobbs, 2011 Ark. 76 (per curiam). It is true that we will treat allegations of void or illegal
sentences similarly to the way that we treat problems of subject-matter jurisdiction. Friend v.
State, 364 Ark. 315, 219 S.W.3d 123 (2005) (citing Taylor v. State, 354 Ark. 450, 125 S.W.3d 174(2003)). However, a habeas-corpus proceeding does not afford a prisoner an opportunity to
retry his case, and it is not a substitute for direct appeal or postconviction relief. Bliss, 2012 Ark.
315; Van v. Hobbs, 2011 Ark. 287 (per curiam); Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143,
144 (2000). Appellant’s allegations either could have been, or were, raised in the trial court and
on direct appeal. A habeas-corpus proceeding does not afford a prisoner a means to revisit the
merits of matters that were, or could have been addressed and settled, in the trial court or on
appeal. See Douthitt v. Hobbs, 2011 Ark. 416 (per curiam).
3
Cite as 2013 Ark. 385When a petitioner in a habeas proceeding failed to raise a claim within the purview of a
habeas action, the petitioner failed to meet his burden of demonstrating a basis for a writ of
habeas corpus to issue. McArty v. Hobbs, 2012 Ark. 501 (per curiam); Henderson v. White, 2011
Ark. 361 (per curiam). Appellant did not meet his burden, and, therefore, he could not prevail
on appeal. See Douthitt, 2011 Ark. 416.
Appeal dismissed; motions moot.
Gary W. Benton, pro se appellant.
No response.
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