Vonnie Moore/Shabazz v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 9, 2000

VONNIE MOORE/SHABAZZ

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-770

PRO SE MOTIONS FOR CERTIFIED COPY OF TRIAL TRANSCRIPT AND COPY OF HABEAS CORPUS PROCEEDINGS AT PUBLIC EXPENSE, TO FILE BELATED REPLY BRIEF, AND MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF PULASKI COUNTY, HON. DAVID BOGARD, JUDGE, NO. CR 96-1332]

MOTIONS FOR CERTIFIED COPY OF TRIAL TRANSCRIPT AND FOR COPY OF HABEAS CORPUS PROCEEDINGS AT PUBLIC EXPENSE AND TO FILE BELATED REPLY BRIEF DENIED AND APPEAL DISMISSED; MOTION FOR EXTENSION OF TIME TO FILE BRIEF MOOT

Vonnie Moore/Shabazz was found guilty by a jury in 1996 of aggravated robbery, robbery, and two counts of misdemeanor theft of property. He was sentenced as a habitual offender to serve consecutive terms of life imprisonment for aggravated robbery, forty years' imprisonment for robbery, and one year in the county jail for each of the misdemeanor thefts.

On appeal, we affirmed but modified the sentence to limit the total sentence for the misdemeanor thefts to one year to be served consecutively with the felony sentences. Moore v. State, 330 Ark. 515, 954 S.W.2d 932 (1997).

Moore/Shabazz subsequently filed a series of three pro se petitions to correct sentencepursuant to Ark. Code Ann. 16-90-111 (Supp. 1995) or, in the alternative, for writs of habeas corpus. The court denied the three petitions in 1999. Soon thereafter, Moore/Shabazz filed a fourth petition in the trial court seeking a writ of habeas corpus and again invoking Ark. Code Ann. 16-90-111 (Supp. 1995). The petition was denied, and the record has been lodged here on appeal. Appellant Moore/Shabazz seeks by motions a copy at public expense of the transcript of his trial and the record lodged in this appeal, an extension of time to file the appellant's brief-in chief, and leave to file a belated reply brief. After the motion for time was filed, appellant filed his brief-in-chief, rendering that motion moot. As for the remaining motions, we find that appellant could not be successful on appeal and deny the motions and dismiss the appeal. We have consistently held that an appeal of a postconviction order shall be dismissed where it is clear that the appellant cannot prevail. See Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

With respect to appellant's claim that a writ of habeas corpus should issue, appellant alleged that: (1) the trial court erred in its sentencing instructions to the jury and in not holding a bifurcated proceeding on the habitual offender allegation; (2) the trial court did not have the authority to find him a habitual offender; (3) the evidence was insufficient to support the finding that he was a habitual offender; (4) the sentence was illegal in that he was charged under two sections of the habitual offender act; and (5) he was denied effective assistance of counsel at trial and on appeal. It is well settled that the burden is on the petitioner in a habeas corpus action to

establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). 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" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). Allegations of ineffective assistance of counsel which do not pertain directly to a showing that the trial court lacked jurisdiction or that the commitment was invalid are not cognizable in a petition for writ of habeas corpus. Such allegations are properly raised under Criminal Procedure Rule 37. See Mackey v. State, 307 Ark. 321, 819 S.W.2d 702 (1991). The allegations raised by appellant did not demonstrate that the trial court lacked jurisdiction or that the commitment was invalid on its face. There was, therefore, no ground to grant a writ of habeas corpus.

As to Ark. Code Ann.§ 16-90-111 (Supp. 1995), petitioner was procedurally barred from proceeding under the statute. Criminal Procedure Rule 37.2 (b) has superseded Ark. Code Ann. § 16-90-111 (Supp. 1995) for psotconviction relief. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994). Rule 37 provides that all grounds for postconviction relief, including the assertion that a sentence is illegal, must be raised in a petition under the rule filed within sixty days of affirmance of the judgment. Petitioner did not file his petition challenging the judgment within the sixty-day period set by Rule 37. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely postconviction petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d

303 (1989).

Motions for copy at public expense of trial transcript and record lodged in postconviction appeal and motion to file belated reply brief denied and appeal dismissed; motion for extension of time to file brief moot.