Mccullough v. State Of Ark. Respondent

• Citation: 2010 Ark. 394
• Decision Date: 21 October 2010
• Docket Number: No. 10-957,10-957
• Parties: WALTER A. McCULLOUGH Petitioner v. STATE OF ARKANSAS Respondent
• Court: Supreme Court of Arkansas

2010 Ark. 394

WALTER A. McCULLOUGH Petitioner

v.STATE OF ARKANSAS Respondent

No. 10-957

SUPREME COURT OF ARKANSAS

Opinion Delivered October 21, 2010

PRO SE MOTION FOR RULE ON CLERK [CIRCUIT COURT OF LEE

COUNTY, CV 2010-94, HON. RICHARD PROCTOR, JUDGE]

MOTION TREATED AS MOTION FOR BELATED APPEAL AND

DENIED.

PER CURIAM

In 2005, petitioner Walter A. McCullough was found guilty by a jury of committing a terroristic act and battery in the first degree. He was sentenced as a habitual offender to an aggregate term of 960 months' imprisonment. The Arkansas Court of Appeals affirmed. McCullough v. State, CACR 05-1183 (Ark. App. Oct. 11, 2006) (unpublished).

In 2010, petitioner filed in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The court denied the petition on July 7, 2010. Petitioner filed an untimely notice of appeal from the order, and he now seeks leave to proceed with a belated appeal. We treat the motion as a motion for belated appeal pursuant to Arkansas Rule of Appellate Procedure-Criminal 2(e) (2010).

We need not consider petitioner's reasons for failing to perfect an appeal because it is clear from the record that the habeas petition was wholly without merit.¹ This court hasconsistently held that an appeal of a postconviction order, including an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the petitioner could not prevail. Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam); Pardue 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); see also Strong v. State, 2010 Ark. 181, ___S.W.3d___(per curiam); Branning v. Harmon, 2009 Ark. 533 (per curiam); Leaks v. State, 371 Ark. 581, 268 S.W.3d 866 (2007) (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. Hill v. Norris, 2010 Ark. 287 (per curiam); Burgie v. Norris, 2010 Ark. 267 (per curiam); Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990) (per curiam). The petitioner must plead either the 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 (Repl. 2005); Hill, 2010 Ark. 287; see Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989); see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appellant asserted in the habeas petition that the trial court lacked jurisdiction of his criminal case and that his petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010) had been wrongfully denied. He urged the court to reconsider the claims raised in the Rule 37.1 petition as grounds for habeas relief.

In determining whether the denial of a writ of habeas corpus was proper, this court must look to the validity on the face of the judgment. Hill, 2010 Ark. 287; Key v. Norris, 2010 Ark. 61 (per curiam). Petitioner's conclusory claim that the trial court lacked jurisdiction in his case was clearly insufficient to demonstrate that the judgment was invalid. A court with personal and subject-matter jurisdiction over the defendant in a criminal proceeding has authority to render judgment. Hill, 2010 Ark. 28; Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). Petitioner offered no factual substantiation for his allegation and thus failed to meet his burden of showing that the trial court lacked jurisdiction in his case. Washington v. Norris, 2010 Ark. 104 (per curiam).

With respect to petitioner's assertion that the allegations contained in the Rule 37.1 petition that was denied by the trial court should be considered as grounds for a writ of habeas corpus, the court was not required to take judicial notice of the grounds raised in the Rule 37.1 petition. If there was a ground for issuance of the writ, it was petitioner's obligation to present that ground in his petition for writ of habeas corpus.

As appellant clearly failed to meet his burden of showing by affidavit or other evidence of probable cause to believe that he was illegally detained, he was not entitled to a writ of habeas corpus, and there is...