Davis v. State Of Ark. And
| Decision Date | 24 February 2011 |
| Docket Number | No. 10-942,10-942 |
| Citation | 2011 Ark. 88 |
| Parties | CARL DAVIS, JR. Appellant v. STATE OF ARKANSAS and RAY HOBBS, DIRECTOR Appellee |
| Court | Arkansas Supreme Court |
2011 Ark. 88
CARL DAVIS, JR. Appellant
v.
STATE OF ARKANSAS and
RAY HOBBS, DIRECTOR Appellee
No. 10-942
SUPREME COURT OF ARKANSAS
Opinion Delivered : February 24, 2011
In 1991, appellant Carl Davis, Jr., was found guilty of aggravated robbery and sentenced as a habitual offender to seventy years' imprisonment. We affirmed. Davis v. State, CR 91-290 (June 22, 1992) (unpublished). A pro se petition for rehearing was denied. Davis v. State, CR 91-290 (October 5, 1992) (unpublished).
O n July 19, 2010, appellant, who is incarcerated in the custody of the Arkansas Department of Correction by virtue of the conviction, filed in the circuit court in the county where he is incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated §§ 16-112-101 to-123 (Repl. 2006) in which he challenged the judgment. The petition was denied, and appellant lodged an appeal here.
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Appellant now seeks by pro se motion leave to file a belated reply brief and leave to amend that motion. We need not address the merits of the motions because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motions are moot. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. McCullough v. State, 2010 Ark. 394 (per curiam); Moore v. Hobbs, 2010 Ark. 380 (per curiam); Hutcherson v. State, 2010 Ark. 368 (per curiam); Washington v. Norris, 2010 Ark. 104 (per curiam); Edwards v. State, 2010 Ark. 85 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); Pineda v. Norris, 2009 Ark. 471 (per curiam).
Appellant failed to demonstrate in his petition that the writ was warranted. The burden is on the petitioner in a petition for writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Moore, 2010 Ark. 380; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner who does not allege his actual innocence1 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a "showing by affidavit or
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other evidence, [of] probable cause to believe" that he is illegally...
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