Michael Anderson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 30, 2000

MICHAEL ANDERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-791

PRO SE MOTIONS FOR COPY OF RECORD, FOR APPOINTMENT OF COUNSEL, AND FOR EXTENSION OF TIME TO FILE REPLY BRIEF [CIRCUIT COURT OF OUACHITA COUNTY, NO. CR 94-296, HON. CAROL C. ANTHONY, JUDGE]

MOTIONS DENIED AND APPEAL DISMISSED

On February 16, 1995, judgment was entered reflecting that Michael Anderson had pleaded guilty to delivery of a controlled substance and been sentenced as a habitual offender to 132 months' imprisonment with an additional sixty months suspended. In 1997, Anderson filed in the trial court a pro se motion for "injunctive release" in which he invoked a section of the State habeas statute, Ark. Code Ann. § 16-112-118(4)(b)(1)(B),1 contending that the commitment was invalid on its face. The trial court denied the motion, and Anderson appealed to this court. We found the appeal to be wholly without merit and dismissed it. Anderson v. State, CR 97-405 (November 20, 1997).

On April 26, 2000, Anderson, who was incarcerated in Jefferson County, filed anotherpetition for writ of habeas corpus in the trial court in Ouachita County. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Anderson now seeks by pro se motion a copy of the record, appointment of counsel, and an extension of time to file a reply brief. As we find that appellant could not be successful on appeal, the motions are denied and the appeal dismissed. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. 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).

Appellant did not contend in the petition for writ of habeas corpus that he was in custody in Ouachita County when he filed the petition there, and his address on the petition reflected that he was in fact incarcerated in Jefferson County. The Circuit Court of Ouachita County did not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody within that county. Pardue, supra; Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Motions denied and appeal dismissed.

1 The record pertaining to that motion reflected that Anderson had filed an earlier petition for writ of habeas corpus in the trial court which was denied by order entered January 10, 1997.