Androus Hall v. Larry Norris, Director

ARKANSAS SUPREME COURT

No. 05-88

NOT DESIGNATED FOR PUBLICATION

ANDROUS HALL

Appellant

v.

LARRY NORRIS, DIRECTOR

Appellee

Opinion Delivered May 19, 2005

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF LEE COUNTY, CV 2004-89, HON. HARVEY LEE YATES, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

Androus Hall was convicted of aggravated robbery, battery in the first degree and attempted rape, and sentenced to a total of forty-eight years' imprisonment in the Arkansas Department of Correction. The court of appeals affirmed in an unpublished opinion. Hall v. State, CACR 97-1344 (Ark. App. Nov. 18, 1998). Hall subsequently filed a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied as untimely. This court denied a motion for belated appeal of that order in an unpublished opinion. Hall v. State, CR 03-537 (Ark. Oct. 9, 2003). In 2004, Hall filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record has been lodged here on appeal.

Appellant has requested an extension of time in which to file his brief. We need not consider the motion, as it is apparent that appellant could not prevail in this appeal if permitted to go forward because he has failed to assert or demonstrate a ground for the writ. We have consistently held that 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 appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (percuriam).

Unless a 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. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990) (per curiam). The petitioner must plead either 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); also see Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appellant has not plead facial invalidity or lack of jurisdiction. He has alleged in his habeas petition only that he was entitled to relief on the grounds that the evidence against him was insufficient in that the state failed to prove the elements of the crimes charged, that there was prosecutorial and judicial misconduct, and that he was provided ineffective assistance of counsel. Appellant's claims are not sufficient to show that the commitment was facially invalid or that the trial court lacked jurisdiction, and should have been raised in a petition for postconviction relief under Ark. R. Crim. P. 37.1. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and is not a substitute for direct appeal or postconviction relief. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). The court did not err in declining to issue a writ of habeas corpus.

Appeal dismissed; motion moot.

Imber, J., not participating.