Winnett v. State , 2013 Ark. 482 ( 2013 )

Cite as 2013 Ark. 482
SUPREME COURT OF ARKANSAS
No. CR-13-572
Opinion Delivered November 21, 2013
DONALD FELIX WINNETT PRO SE MOTION TO SUBMIT A
APPELLANT NONCONFORMING BRIEF AND
v. MOTION FOR SENTENCE
REDUCTION [SALINE COUNTY
STATE OF ARKANSAS CIRCUIT COURT, 63CR-06-523, HON.
APPELLEE GARY M. ARNOLD, JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 2007, appellant Donald Felix Winnett entered a negotiated plea of guilty or nolo
contendere to rape. He was sentenced to serve 240 months’ imprisonment.
In 2013, appellant filed a pro se petition for writ of habeas corpus in the trial court
pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code
Annotated sections 16-112-201 to -208 (Repl. 2006). In support of his petition, appellant
summarily stated that scientific evidence was available to show his actual innocence, and he
made a number of claims related to the legality of his arrest. The trial court denied the motion
based on its finding that the petition was untimely and that appellant offered no scientific
evidence in support of his allegation. Appellant lodged this appeal. Now before us are
appellant’s pro se motions to submit a nonconforming brief and for sentence reduction.
We need not consider appellant’s motions because it is clear that the habeas petition
is wholly without merit. An appeal from an order that denied a petition for postconviction
Cite as 2013 Ark. 482
relief, including a petition under Act 1780 of 2001, will not be allowed to proceed where it is
clear that an appellant could not prevail. Cooper v. State, 2013 Ark. 180 (per curiam); Fields v.
State, 2013 Ark. 154 (per curiam); King v. State, 2013 Ark. 133 (per curiam); Foster v. State, 2013
Ark. 61 (per curiam).
Act 1780 of 2001, 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. § 16-112-201; King, 2013 Ark. 133; Foster,
2013 Ark. 61. Before a circuit court can order testing under this statute, however, there are
a number of predicate requirements that must be met. King, 2013 Ark. 133; Foster, 2013 Ark.
61; Douthitt v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam); see Ark. Code Ann. §§
16-112-201 to -203.
In his petition, appellant alleged that he had scientific evidence available to show his
actual innocence. However, he based the allegation on the fact that there was no arrest
warrant filed, that the affidavit of probable cause was not valid, and that he was not read his
Miranda rights. As found by the trial court, appellant offered no scientific evidence in support
of his allegation. While appellant referred to Act 1780 in his petition, he failed to show that
his request satisfied the requirements of section 16-112-202. He did not describe any new
technology that would result in new scientific evidence or otherwise allege what evidence
testing would produce.
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.
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Cite as 2013 Ark. 482
Cooper v. State, 2012 Ark. 123 (per curiam). 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. Id. Considering
the unsubstantiated claim raised by appellant that merely alleged the availability of scientific
evidence, it cannot be said that the trial court erred in denying relief.
Moreover, we agree with the trial court that dismissal of the petition is proper because
it was not timely filed. A petitioner who files a petition more than thirty-six months after the
entry of the judgment of conviction must rebut a presumption that his petition is untimely.
Ark. Code Ann. § 16-112-202(10)(B). This presumption against timeliness may be rebutted
by showing that the petitioner was or is incompetent, and the incompetence substantially
contributed to the delay; that the evidence to be tested is newly discovered; 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; that a new method of technology exists that is
substantially more probative than was the testing available at the time of the conviction; or for
other good cause. Id. Appellant filed his petition more than five years after the judgment of
conviction had been entered against him, and he failed to state any basis in his petition to rebut
the presumption against timeliness.
Appeal dismissed; motions moot.
Donald Felix Winnett, pro se appellant.
No response.
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