Clay v. Kelley

Cite as 2017 Ark. 294
SUPREME COURT OF ARKANSAS
No. CV-17-247
MICHAEL ANTHONY CLAY Opinion Delivered October 26, 2017
APPELLANT
PRO SE APPEAL FROM THE
V. LINCOLN COUNTY CIRCUIT
COURT [NO. 40CV-16-137]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF HONORABLE JODI RAINES
CORRECTION DENNIS, JUDGE
APPELLEE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Appellant Michael Anthony Clay filed in the circuit court in the county where he
was incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code
Annotated section 16-112-101 to -123 (Repl. 2016), alleging he was actually innocent of
the offense of capital murder and that his due-process rights had been violated.1 The circuit
court dismissed Clay’s habeas petition, finding that Clay had failed to establish probable
cause that he was being held illegally, that the trial court lacked jurisdiction, or that the
commitment was invalid on its face. On appeal, Clay renews his claims; specifically, that
the State failed to charge or prove the underlying felony of robbery in furtherance of the
1
A petitioner asserting the right to be released on a writ of habeas corpus on the
ground of actual innocence must proceed under Act 1780 of 2001, codified at Arkansas
Code Annotated sections 16-112-201 to -208 (Repl. 2006), and the petition must be filed
in the court in which the conviction was entered. See Ark. Code Ann. § 16-112-201(a)
(Repl. 2006). Clay did not invoke Act 1780 in his petition.
Cite as 2017 Ark. 294
murder and that it is a denial of due process to send an accused person to prison following
conviction on a charge for which he was never tried. Because Clay failed to establish
probable cause for the writ to issue, this court affirms the dismissal of habeas relief.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its
face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark.
465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his
actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity
of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit
or other evidence of probable cause to believe that he is being illegally detained. Ark. Code
Ann. § 16-112-103(a)(1) (Repl. 2016); see Barber v. Kelley, 2017 Ark. 214, at 3–4. A habeas
proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a
substitute for direct appeal or postconviction relief. See Noble v. Norris, 368 Ark. 69, 243
S.W.3d 260 (2006). A circuit court’s decision on a petition for writ of habeas corpus will
be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d
364, 367. A decision 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 made. Id. Unless the petitioner can show that the trial
court lacked jurisdiction or that the commitment was invalid on its face, there is no basis
for a finding that a writ of habeas corpus should issue. Fields v. Hobbs, 2013 Ark. 416.
On appeal, Clay contends that he makes “two separate claims under the heading of
innocence. One that he is actually innocent of the underlying felony under Arkansas law,
and he is innocent of a life[]without parole sentence.” Clay first argues that the State failed
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to prove robbery as the underlying felony of capital murder pursuant to Arkansas Code
Annotated section 5-10-101. Specifically, he contends that the State’s only proof indicated
that the alleged robbery was an afterthought to the murder and not a motivating factor
because “theft was the only evidence proven at trial”; that he should have been considered
for the charge of first-degree murder; and that the State failed to allege that the murder and
the robbery were all part of one transaction. Clay also vaguely alleges a due-process
violation because his conviction was “affirmed under a criminal statute for a violation of
which he had not [been] charged in the felony information or found guilty with the
underlying felony of robbery.” Clay fails to establish that the trial court lacked jurisdiction
or that the commitment was invalid on its face.
Claims of actual innocence, which are effectively challenges to the sufficiency of the
evidence, are due-process claims that are not cognizable in habeas proceedings. See Philyaw,
2015 Ark. 465, at 6, 477 S.W.3d at 507 (Due-process claims do not implicate the facial
validity of the judgment or the jurisdiction of the trial court.). In making his actual-
innocence challenge, Clay failed to argue that his sentence was facially invalid or that the
trial court lacked jurisdiction. Clay’s claims regarding the underlying felony of robbery have
been raised and specifically addressed by this court on direct appeal from the judgment as a
challenge to the sufficiency of the evidence. In his direct appeal, Clay argued that the
evidence was “insufficient to establish the allegation that he murdered Glynda Wallace in
the course of committing a felony as required for a conviction pursuant to Ark. Code Ann.
§ 5-10-101” and that his possession of Ms. Wallace’s vehicle after the homicide did not
indicate that he was guilty of capital felony murder. Clay v. State, 324 Ark. 9, 10–11, 919
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S.W.2d 190, 190–91 (1996). This court found that Clay’s statements, when combined with
the evidence of his subsequent conduct with respect to Ms. Wallace’s vehicle, were sufficient
to show the murder and robbery occurred together. Id. at 12, 919 S.W.2d at 192.
Regarding Clay’s claim of a due-process violation, he relies on Cole v. Arkansas, 333
U.S. 196 (1948), for the proposition that it is as much a “violation of due process to send
an accused person to prison following the conviction of a charge on which he was never
tried as it would be to convict him upon a charge that was never made.” 2 Clay reargues,
under the guise of a due-process violation, that the intention to commit a robbery was never
formed before the beginning of the fatal assault. As stated, due-process claims do not
implicate the facial validity of the judgment or the jurisdiction of the trial court. See Philyaw,
2015 Ark. 465, 477 S.W.3d 503. Although claims of a defective information that raise a
jurisdictional issue—such as those that raise a claim of an illegal sentence—are cognizable in
a habeas proceeding, allegations of a defective information are not generally considered to
be jurisdictional and are treated as trial error. Williams v. Kelley, 2017 Ark. 200, 521 S.W.3d
104. To the extent Clay attempts to make an allegation of a defective information, he fails
to make an assertion of a specific defect or that a defect rendered his sentence illegal.
2
Clay’s reliance on Cole is misplaced, as it was a case that involved a conviction based
on section 2 of Act 193 of the 1943 Arkansas Legislature when the petitioners were charged
by information with section 1 of Act 193, and both sections included vastly different
standards which affected the petitioners’ right to be on notice of the specific charges against
them. Cole, 333 U.S. at 201. Here, Clay was charged by information and convicted of
capital murder pursuant to Arkansas Code Annotated section 5-10-101, and he does not
dispute that he was aware of the nature of the charge against him.
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Assertions of trial error do not implicate the facial validity of the judgment or the jurisdiction
of the trial court.3
Affirmed.
Michael Anthony Clay, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.
3
Clay makes a one-sentence claim on appeal that this court “should review the
record for objection not made by the Appellant during the proceeding in the trial court.”
This argument was not raised before the trial court, and we will not consider an argument
raised for the first time on appeal. Dickey v. State, 2016 Ark. 66, at 4–5, 483 S.W.3d 287,
289. Nevertheless, ineffective-assistance-of-counsel claims are not cognizable in habeas
proceedings. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992).
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