FREDDIE CLARK v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION , 2020 Ark. 206 ( 2020 )

Cite as 2020 Ark. 206
SUPREME COURT OF ARKANSAS
No. CV-19-942
FREDDIE CLARK Opinion Delivered: May 21, 2020
APPELLANT
PRO SE APPEAL FROM THE
V. JEFFERSON COUNTY CIRCUIT
COURT
WENDY KELLEY, DIRECTOR, [NO. 35CV-19-355]
ARKANSAS DEPARTMENT OF
CORRECTION HONORABLE JODI RAINES DENNIS,
APPELLEE JUDGE
APPEAL DISMISSED.
SHAWN A. WOMACK, Associate Justice
In 2008, a Pulaski County jury convicted Freddie Clark of rape and sentenced him
to twenty-five years imprisonment. Clark is presently incarcerated at the Pine Bluff Unit of
the Arkansas Department of Correction in Jefferson County. He appeals the Jefferson
County Circuit Court’s dismissal of his petition to correct an illegal sentence. Because the
petition was filed in the circuit court presiding over the county of Clark’s incarceration,
rather than the court of conviction, we must dismiss this appeal for lack of jurisdiction.
In his petition, Clark alleged that the evidence was insufficient to support his rape
conviction. He argued that the evidence supported only a conviction of fourth degree sexual
assault. The circuit court dismissed the petition and held that the sentence fell within the
statutory sentencing range for rape. It also noted that a challenge to the sufficiency of the
evidence should have been raised at trial, on direct appeal, or in a timely Rule 37 petition.
A petition to correct an illegal sentence under Arkansas Code Annotated section 16-
90-111 may be addressed at any time. See White v. State, 2018 Ark. 81, at 3, 540 S.W.3d 291,
294. But only the court of conviction, in this case the Pulaski County Circuit Court, has
authority to grant relief under the statute. See Wesley v. Hobbs, 2014 Ark. 260, at 2 (per
curiam). The Jefferson County Circuit Court accordingly lacked jurisdiction to consider
the petition. Id. It follows that we are without jurisdiction to consider this appeal. Id. at 2–
3 (“Where the circuit court lacks jurisdiction, the appellate court also lacks jurisdiction.”).
To avoid this jurisdictional bar, Clark contends he mislabeled his petition and sought
a writ of habeas corpus. Though the circuit court’s order dismissing the petition is captioned
“Order Denying Petition to Correct Illegal Sentence/Habeas,” Clark did not seek the writ.
Nor did the court treat the petition as one for habeas relief. Yet even if the petition was
viewed as one for a writ of habeas corpus, it fails to establish any basis for the writ.
Clark relies on his challenge to the sufficiency of the evidence to argue entitlement
to habeas relief. He contends that the insufficient evidence of rape means he is actually
innocent of the conviction. Habeas proceedings are not a means to challenge the sufficiency
of the evidence. See Jones v. State, 2019 Ark. 12, at 3, 565 S.W.3d 100, 102. Habeas actions
likewise do not afford a petitioner the opportunity to retry his case. Id. Clark’s challenge to
the sufficiency of the evidence does not fall within the purview of habeas and therefore does
not establish a basis for the writ to issue. See McArthur v. State, 2019 Ark. 220, at 3, 577
S.W.3d 385, 388.
Appeal dismissed.
Freddie Clark, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.
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