Brian K. Thomas v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-885

NOT DESIGNATED FOR PUBLICATION

BRIAN K. THOMAS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered December 1, 2005

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS [CIRCUIT COURT OF WASHINGTON COUNTY, CR 2002-1137-1, HON. WILLIAM STOREY, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

PER CURIAM

In 2003, Brian Kenneth Thomas pled guilty to four felony offenses and was sentenced to 120 months' imprisonment to be served concurrently with a previous conviction and four-year sentence imposed in Missouri. In 2004, Thomas filed in the trial court a motion seeking credit against his sentence for time spent in pre-trial custody. The petition was denied and no appeal was taken.

In 2005, Thomas filed in the trial court a petition for writ of habeas corpus, again claiming that he was entitled to credit against his sentence for time in pre-trial custody. The trial court denied the petition, and Thomas has lodged an appeal from that order in this court. Now before us are appellant's motions for appointment of counsel and for leave to proceed in forma pauperis.

We need not consider the motions as it is apparent from the record that appellant could not prevail if allowed to go forward because he failed to demonstrate a ground for which a writ of habeas corpus could be issued. Accordingly, the appeal is dismissed. The motions are moot.

This court has 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. Purdue 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) (per curiam).

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 a 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.W2d 478 (1989), see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appellant failed to make a showing that either the trial court lacked jurisdiction in his case, or that the commitment order was invalid on its face. Arguments pertaining to jail-time credit are not cognizable in a habeas proceeding.

Appeal dismissed; motions moot.