Hussey v. State

Cite as 2014 Ark. 322
SUPREME COURT OF ARKANSAS
No. CR-13-131
VINCENT JAMES HUSSEY Opinion Delivered July 31, 2014
APPELLANT
V. PRO SE APPEAL FROM THE DREW
COUNTY CIRCUIT COURT
[NO. 22CR-96-34]
STATE OF ARKANSAS
APPELLEE HONORABLE SAM POPE, JUDGE
AFFIRMED.
PER CURIAM
In 1996, appellant Vincent James Hussey was convicted by a jury in the Drew County
Circuit Court of capital murder and aggravated robbery and was sentenced to life imprisonment
without parole. We affirmed. Hussey v. State, 332 Ark. 552, 966 S.W.2d 261 (1998).
In 2012, sixteen years after the judgment had been entered, appellant filed in the trial
court a pro se petition for writ of habeas corpus 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 the petition, appellant asserted that he was actually innocent of the murder and sought
DNA testing of blood on a red shirt. The petition was denied, and appellant filed a motion for
reconsideration that was also denied. He now brings this appeal. We find no error and affirm.
Appellant and Derrick Harris were charged with shooting to death Jimmy Gathings, a
used-car dealer. Appellant was identified at trial as one of two men who ran from Gathings’s
office immediately after the shots had been fired. There was eyewitness testimony that the
second man out of Gathings’s office was wearing a brown or tan flannel shirt with a red shirt
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underneath and a blue or black toboggan on his head—the same clothing appellant had been
wearing on the day Gathings was murdered. A serologist testified that the red shirt had blood
stains matching Gathings’s blood type.
In this appeal, appellant asserts that the trial court erred in denying his petition on the
grounds that DNA testing would prove that the blood on the red shirt was Harris’s blood from
a cut on Harris’s hand and that the identification of appellant as the second man running from
the building was wrong. For the first time in this appeal, he argues that he was not afforded
DNA testing of the blood evidence at trial because his attorney was ineffective and contends
that counsel’s failure to obtain DNA testing excuses the delay in bringing the request for the
testing.
In appeals of postconviction proceedings, we will not reverse a circuit court’s decision
granting or denying postconviction relief unless it is clearly erroneous. Biggs v. State, 2014 Ark.
114 (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. Arkansas Code Annotated section 16-112-
205(a) provides that the court is not required to hold an evidentiary hearing if the petition, files,
and records conclusively show that the petitioner is entitled to no relief. Because it is clear from
the petition as well as the order denying relief that appellant failed to rebut the presumption
against timeliness pursuant to Arkansas Code Annotated section 16-112-202(10)(B), we find no
error in the trial court’s order denying the requested relief without a hearing.
The Act in effect on the date that petitioner filed his petition provides that a writ of
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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 v. State, 2013 Ark.
133 (per curiam); Foster v. State, 2013 Ark. 61 (per curiam); Garner v. State, 2012 Ark. 271 (per
curiam) (citing Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam)). Before a trial 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.
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. Ark. Code Ann. § 16-112-202(10)(B). 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) 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 petition in the trial court sixteen 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 time limitation. In neither
his petition nor the motion for reconsideration filed after the petition was denied did appellant
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make any attempt to rebut the presumption against timeliness. Accordingly, he did not establish
good cause for the lengthy delay. As to appellant’s assertion in his brief concerning ineffective
assistance of counsel as a cause for his failure to file a timely petition, the argument was not
raised in appellant’s petition or in the motion for reconsideration, and we will not consider issues
on which the trial court has not had the opportunity to rule which are raised for the first time
on appeal. Biggs, 2014 Ark. 114; Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007).
Affirmed.
Vincent J. Hussey, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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