Green v. State

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SUPREME COURT OF ARKANSAS
No. CV-13-987
Opinion Delivered January 23, 2014
PRO SE APPELLANT’S MOTION FOR
MICHAEL GREEN EXTENSION OF TIME TO FILE
APPELLANT BRIEF [LEE COUNTY CIRCUIT
COURT, 39CV-13-106]
v.
HONORABLE RICHARD L.
STATE OF ARKANSAS PROCTOR, JUDGE
APPELLEE
APPEAL DISMISSED; MOTION
MOOT.
PER CURIAM
In 2009, appellant Michael Green was found guilty by a jury of possession of a controlled
substance with intent to deliver. He was sentenced as a habitual offender to a term of 720
months’ imprisonment. The Arkansas Court of Appeals affirmed. Green v. State, 2010 Ark. App.
151.
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 contended that he was subjected to an illegal search
and seizure of evidence and an illegal arrest and that there was insufficient evidence to sustain
the judgment as revealed in contradictory testimony of witnesses at his trial. The circuit court
denied the habeas petition, and appellant lodged an appeal of that order in this court. Now
before us is appellant’s motion for extension of time to file his brief-in-chief.
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As of the date of this opinion, appellant remains incarcerated in Lee County.
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We dismiss the appeal, and the motion is 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 appeal is without merit. Glaze v. Hobbs, 2013
Ark. 458 (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 trial court lacked jurisdiction over the cause. Glaze, 2013 Ark. 458; 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 judgment-and-commitment order 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 claims of error and insufficiency of the
evidence that could have been, or were, raised at trial. The allegations did not call into question
the trial court’s jurisdiction or the facial validity of the judgment-and-commitment order entered
in appellant’s case. See Daniels v. Hobbs, 2011 Ark. 192 (per curiam) (holding that allegations of
an illegal search and insufficiency of the evidence were not grounds for issuance of the writ).
This court has specifically held that a court’s jurisdiction to try an accused does not
depend upon the validity of an arrest. Robertson v. State, 2013 Ark. 75 (per curiam); Singleton v.
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State, 256 Ark. 756, 510 S.W.2d 283 (1974). An illegal arrest, standing alone, does not vitiate a
valid conviction. Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994). Issues related to the
validity of appellant’s arrest are factual issues that should have been addressed in the trial court.
See Grimes v. State, 2010 Ark. 97. Likewise, the issue of the admissibility of evidence obtained
incident to a search is not a ground for relief in a habeas proceeding. Nelson v. Norris, 2013 Ark.
333 (per curiam).
Jurisdiction is the power of the court to hear and determine the subject matter in
controversy. Bliss v. Hobbs, 2012 Ark. 315 (per curiam); Culbertson v. State, 2012 Ark. 112 (per
curiam). Appellant offered nothing to demonstrate that the trial court in his case did not have
subject-matter jurisdiction to hear and determine cases involving violations of criminal statutes.
Culbertson , 2012 Ark. 112. 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).
To the extent that the claims raised by appellant could have been construed as claims that
he was denied effective assistance of counsel for failure to properly address the issues at trial,
allegations of ineffective assistance of counsel are not cognizable in a habeas proceeding. Rodgers
v. State, 2011 Ark. 443 (per curiam); Willis v. State, 2011 Ark. 312; Tryon v. State, 2011 Ark. 76 (per
curiam); Grimes v. State, 2010 Ark. 97 (per curiam). Claims concerning counsel’s effectiveness
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are properly raised pursuant to Arkansas Rule of Criminal Procedure 37.1 (2013). Rodgers, 2011
Ark. 443; Christopher v. Hobbs, 2011 Ark. 399 (per curiam); Moore v. State, 2010 Ark. 380; Hill v.
Norris, 2010 Ark. 287 (per curiam). A petition for writ of habeas corpus is not a substitute for
proceeding under Rule 37.1. Rodgers, 2011 Ark. 443; Tryon, 2011 Ark. 76; see also Johnson v. Hobbs,
2010 Ark. 459 (per curiam); Rickenbacker v. Norris, 361 Ark. 291, 206 S.W.3d 220 (2005).
When a petitioner in a habeas proceeding fails to raise a claim within the purview of a
habeas action, the petitioner fails to meet his burden of demonstrating a basis for a writ of
habeas corpus to issue. Benton v. Hobbs, 2013 Ark. 385 (per curiam); Henderson v. White, 2011 Ark.
361 (per curiam). Appellant clearly did not meet his burden, and, therefore, he could not prevail
on appeal. See Glaze, 2013 Ark. 458; see also Douthitt v. State, 2011 Ark. 416 (per curiam).
Appeal dismissed; motion moot.
Michael Green, pro se appellant.
No response.
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