Hunes v. State
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Cite as 2010 Ark. 70
SUPREME COURT OF ARKANSAS
No. CR 81-74
Opinion Delivered
CARDELL HUNES
Petitioner
v.
February 12, 2010
PRO SE PETITION FOR
POSTCONVICTION RELIEF
PURSUANT TO ARKANSAS RULE OF
CRIMINAL PROCEDURE 37.1
[CIRCUIT COURT OF PULASKI
COUNTY, CR 80-2085]
STATE OF ARKANSAS
Respondent
PETITION DENIED.
PER CURIAM
In 1981, petitioner Cardell Hunes was found guilty by a jury of rape, aggravated
robbery, and two counts of kidnapping and sentenced to an aggregate term of 170 years’
imprisonment. We affirmed. Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981).
Petitioner subsequently challenged the judgment in this court in 1988 pursuant to our
postconviction rule, Arkansas Rule of Criminal Procedure 37.1. Ark. R. Crim. P. 37.1
(1985).
The petition was denied. Hunes v. State, CR 81-74 (Ark. Nov. 21, 1988)
(unpublished).
Petitioner Hunes now seeks leave from this court for a second time to proceed in the
trial court with a petition for postconviction relief pursuant to 37.1.1 The petition is properly
For clerical purposes, the petition has been filed under the docket number assigned to the
direct appeal of the judgment when it was lodged in the this court in 1981.
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Cite as 2010 Ark. 70
filed here. The version of Rule 37.1 in effect when petitioner's criminal judgment was
entered in 1981 applied to petitioners with judgments entered before July 1, 1989, that have
been affirmed on appeal, as is the case here. Petitioner is thus required to obtain leave from
this court before filing a postconviction petition in the trial court. Ark. R. Crim. P. 37.2(a)
(1989).
Under the applicable version of Rule 37.1, timely petitions must have been filed
within three years from the date the judgment was entered. Ark. R. Crim. P. 37.2(c) (1989).
An exception to the time limitation is applicable when a petition states a ground sufficient to
render the judgment of conviction absolutely void. Travis v. State, 286 Ark. 26, 688 S.W.2d
935 (1985). An allegation on which a judgment can be voided must present a question of
such fundamental and basic nature that the judgment is a complete nullity, such as a
conviction obtained in a court without jurisdiction to try the accused or a judgment obtained
in violation of double-jeopardy principles. Id. Even questions of a constitutional dimension
are not preserved beyond the direct appeal or available for collateral attack unless the issue
renders the judgment void. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per
curiam).
It is thus apparent that review of mere trial error is not sufficient to warrant granting
relief under Rule 37.1, and the petition cannot be used as a substitute for raising an issue at
trial and on appeal. Id. If a defendant’s argument fails to present a claim of constitutional
deprivation of rights sufficient to render the judgment void, the Rule 37.1 petition is deemed
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Cite as 2010 Ark. 70
to be untimely filed. Mackey v. State, 286 Ark. 188, 690 S.W.2d 353 (1985) (per curiam)
(citing Moore v. Illinois, 408 U.S. 786 (1972)). The burden is on the defendant to establish
grounds to void the judgment of conviction. Travis v. State, 286 Ark. 26, 688 S.W.2d 935.
Petitioner here alleges only that his confession was not admissible into evidence at trial.
As the claim was raised at trial and addressed on appeal, it is not cognizable in a petition under
Rule 37.1. Rule 37.1 does not provide an opportunity to reargue points settled on appeal.
O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916 (1989); Swindler v. State, 272 Ark. 340, 617
S.W.2d 1 (1981) (per curiam).
Petition denied.
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