Carter v. State
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SUPREME COURT OF ARKANSAS
No.
CR 08-1333
Opinion Delivered
SANDERS M. CARTER
Appellant
January 21, 2010
PRO SE APPEAL FROM CIRCUIT
COURT OF PULASKI COUNTY, CR 8763, HON. JOHN LANGSTON, JUDGE
v.
STATE OF ARKANSAS
Appellee
AFFIRMED.
PER CURIAM
In 1987, appellant Sanders M. Carter was convicted by a jury of rape, aggravated
robbery, and burglary. He was sentenced as a habitual offender to consecutive terms of
imprisonment of life and forty years. We affirmed. Carter v. State, 295 Ark. 218, 748 S.W.2d 127
(1988).
Subsequently, appellant filed in this court a pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1.1 The petition was denied. Carter v. State,
Prior to July 1, 1989, a petitioner whose judgment of conviction had been affirmed on appeal
was required to petition this court for relief under Arkansas Rule of Criminal Procedure 37.1 and gain
leave from this court to proceed under the rule in the circuit court before filing a petition there.
Arkansas Rule of Criminal Procedure 37 was abolished by this court effective July 1, 1989. In the Matter
of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark.
Appx. 573, 770 S.W.2d 148 (1989) (per curiam). Rule 37 was reinstated in a revised form on January
1, 1991. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark.
Appx. 746, 797 S.W.2d 458 (1990) (per curiam). The revised rule does not require petitioners to gain
leave of this court before proceeding in the trial court.
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CR 87-209 (Ark. Oct. 16, 1989) (per curiam). In 1990, appellant filed a pro se petition for writ
of habeas corpus in the trial court that was denied. On appeal from the order, this court
concluded that the allegations raised in the petition were cognizable under Arkansas Rule of
Criminal Procedure 37.1 and did not state a ground to issue the writ. The appeal was dismissed.
Carter v. State, CR 90-187 (Ark. Nov. 5, 1990) (per curiam). Appellant then filed in the trial court
a petition for scientific testing pursuant to Act 1780 of 2001 Acts of Arkansas, codified as
Arkansas Code Annotated. §§ 16-112-201 to 207 (Supp. 2003), based on a claim that the chain
of custody of certain evidence was not broken. Ark. Code Ann. § 16-112-202(b). After a hearing
at which appellant was represented by counsel, the trial court denied the petition, and we
affirmed. Carter v. State, CR 03-148 (Ark. Feb. 19, 2004) (per curiam). Next, in 2005, appellant
filed a petition for writ of habeas corpus in the circuit court in the county in which he was
incarcerated. The petition was denied, and we affirmed the order. Carter v. Norris, 367 Ark. 360,
240 S.W.3d 124 (2006) (per curiam).
On May 29, 2008, appellant filed another pro se petition for writ of habeas corpus in the
trial court pursuant to Act 1780 of 2001 Acts of Arkansas, codified as Arkansas Code Annotated
§§ 16-112-201 to 208 (Repl. 2006). In the petition, appellant asserted that he was actually
innocent of the crimes of which he had been convicted, and he claimed that there was evidence
collected at the crime scene in 1986 that should be subjected to scientific testing. He noted that
in his first proceeding under Act 1780, it was determined that the evidence collected in 1986 was
no longer in police storage and that in 1987 it had been delivered to Detective Gray LaMaster.
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Appellant contended that the court should subpoena LaMaster to produce certain hairs that
were a part of the evidence so that the hairs could be tested, apparently maintaining that
LaMaster still had the hairs in his possession.
On June 26, 2008, appellant filed a motion for default judgment pursuant to Arkansas
Rule of Civil Procedure 55 on the ground that the State had failed to file an answer to the habeas
petition. On August 1, 2008, the court entered a final order on the habeas petition, holding that
appellant could have made his request to subpoena LaMaster when the hearing was held in 2002
on the first habeas petition inasmuch as he knew the basis for the request to subpoena him at
that time. The court further said that the fact that a detective may have removed evidence for
testing at the Arkansas State Crime Laboratory in 1987 did not mean that the evidence was still
in the detective’s possession twenty-one years later. The court concluded that appellant had
already sought scientific testing of evidence collected at the crime scene and that he had not
established that he was entitled pursuant to Arkansas Code Annotated § 16-112-205(d) to file
a subsequent petition for scientific testing. The petition was denied, and appellant brings this
appeal.2
Appellant first argues on appeal that the motion for default judgment pursuant to
Arkansas Rule of Civil Procedure 55 should have been granted. There is no merit to the claim.
This court has recognized that postconviction proceedings are civil in nature and applied the
Appellant urges this court to strike the brief filed by the appellee in this appeal on the ground
that it was not timely filed. As our docket indicates that the brief was filed on the date it was due, the
request is denied.
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Arkansas Rules of Appellate Procedure-Civil when necessary. Sanders v. State, 352 Ark. 16, 98
S.W.3d 35 (2003). However, we have never applied the Arkansas Rules of Civil Procedure to
postconviction proceedings. Id. Nor do we apply those rules to a postconviction habeas
proceeding. See Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). While there is a mandatory
response requirement in Arkansas Code Annotated § 16-112-204(a), there is no provision for
a default judgment as in Rule 55.
In his second argument for reversal of the trial court’s order, appellant asserts that he did
not become aware of the hairs recovered from the crime scene until 2007 when he obtained a
copy of exhibits from the 2002 hearing. He asserts that he filed the second habeas petition in
2008 based on the newly acquired information. He contends that there is no record of Detective
LaMaster having returned the evidence he removed from the property room, and thus LaMaster.
has retained the evidence “to this date.”
Under Act 1780, the petitioner must claim that (1) the scientific evidence was not
available at trial or (2) the scientific predicate for the claim could not have been previously
discovered through due diligence, and the facts when viewed in light of the evidence as a whole,
establish by clear and convincing evidence that no reasonable fact-finder would find the
petitioner guilty of the underlying offense. Ark. Code Ann. § 16-112-201(a). Appellant has a
duty to present a prima facie case that (1) identity was an issue in the trial and (2) the chain of
custody was not broken. Ark. Code Ann. § 16-112-202(b). Here, it is abundantly clear that
appellant has not shown that the chain of custody concerning the hairs or any other evidence
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on which he relies was not broken. The proceeding in 2002 on appellant’s first petition under
Act 1780 revealed that the evidence was no longer available for testing. Appellant did not offer
a factual basis for his claim in the 2008 petition that the evidence was indeed available with an
unbroken chain of custody as required by section 16-112-202(b)(2). Accordingly, the trial court
did not err in finding that the 2008 petition was a successive petition and subject to summary
denial. Ark. Code Ann. § 16-112-205(d).
Affirmed.
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