Hill v. Norris, 2010 Ark. 287 (Ark. 6/3/2010)

• Decision Date: 03 June 2010
• Docket Number: 10-326.
• Citation: 2010 Ark. 287
• Parties: Johnny Lee HILL, Appellant, v. Larry NORRIS, Appellee.
• Court: Arkansas Supreme Court

Page 1

2010 Ark. 287

Johnny Lee HILL, Appellant, v. Larry NORRIS, Appellee.

10-326.

Supreme Court of Arkansas.

Opinion Delivered June 3, 2010.

Pro Se Motion for Duplication of Appellant'S Brief At Public Expense [Circuit Court of Lincoln County, CV 2009-1270, Hon. Jodi Raines Dennis, Judge].

Appeal Dismissed; Motion Moot.

PER CURIAM.

In 1988, appellant Johnny Lee Hill was found guilty by a jury of murder in the first degree and sentenced to life imprisonment. We affirmed. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989). Appellant subsequently filed in this court a petition to proceed pursuant to Criminal Procedure Rule 37.1 (2010) that was denied. Hill v. State, CR 89-10 (Ark. Jan. 29, 1990) (unpublished per curiam). In 1990, appellant filed in the trial court a petition to correct sentence pursuant to Arkansas Code Annotated § 16-90-111 (Supp. 1989). The appeal was dismissed on the ground that there was clearly no merit to the appeal. Hill v. State, CR 91-101 (Ark. Sept. 16, 1991) (unpublished per curiam).

On December 11, 2009, appellant filed in the circuit court in the county where he was incarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated §§ 16-112-101 to -123 (Repl. 2006). The petition was denied, and appellant lodged an appeal here. He timely tendered one copy of his brief-in-chief and seeks by motion to have it duplicated at public expense.

We need not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motion is 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. Jefferson v. State, 2010 Ark. 202 (per curiam); Hill v. State, 2010 Ark. 102 (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); see also Strong v. State, 2010 Ark. 181, ___ S.W.3d ___ (per curiam).

Appellant failed to state a claim in his petition that was cognizable in a habeas proceeding. The burden is on the petitioner in a habeas corpus petition 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. Boyle v. State, 2010 Ark. 98 (per curiam); 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 other evidence, [of] probable cause to believe" that he is illegally detained. Young, 365 Ark. at 221, 226 S.W.3d at 798-99; Ark. Code Ann. § 16-112-103(a)(1); Grimes v. State, 2010 Ark. 97 (per curiam); Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). In determining whether the denial of a writ of habeas corpus was proper, this court must look for the invalidity only on the face of the judgment. Key v. Norris, 2010 Ark. 61 (per curiam)

Appellant contended in the petition for writ of habeas corpus that the judgment in his case was invalid on the ground that he was found guilty of a charge not contained in the amended information. The original information charged appellant with capital murder. Before voir dire of the jury panel commenced, the court permitted the prosecution, over the objection of the defense, to amend the information so that the language in it reflected the capital felony-murder statute in effect at the time of the alleged offense. The underlying felony was robbery. The jury was subsequently instructed on capital murder and robbery. The jury was further instructed that first-degree murder was a lesser included offense of capital murder and that to sustain a charge of first-degree murder, the jury must find that appellant beyond a reasonable doubt acted with premeditated and deliberated purpose to commit the offense.

Appellant argued that his conviction for first-degree murder was erroneous because he was not charged with first-degree murder in the amended information, and first-degree murder is not a lesser included offense to capital felony murder. He further argued that he should not have been found guilty of acting with premeditation and deliberation to commit first-degree murder when the amended information contained no language addressing premeditation and deliberation. Appellant asserted that he was...