McKinnon v. Norris

• Citation: 231 S.W.3d 725
• Decision Date: 09 March 2006
• Docket Number: No. 05-756.,05-756.
• Parties: Russell McKINNON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
• Court: Supreme Court of Arkansas

231 S.W.3d 725

Russell McKINNON, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.

No. 05-756.

Supreme Court of Arkansas.

March 9, 2006.

Opinion Published May 18, 2006.

Russell McKinnon, pro se, for appellant.

Mike Beebe, Att'y Gen., by: Scott P. Richardson, Ass't Att'y Gen., for appellee.

PER CURIAM.

Russell McKinnon was convicted of rape of an eleven year old and was sentenced as an habitual offender to forty years' imprisonment. We affirmed. McKinnon v. State, 287 Ark. 1, 695 S.W.2d 826 (1985). After the judgment of conviction was affirmed, McKinnon sought leave from this court to proceed in the trial court with a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1.¹ We denied the petition. McKinnon v. State, CR 85-81, 1986 WL 9967 (Ark. Sept. 15, 1986) (per curiam).

McKinnon, an inmate at the Arkansas Department of Correction ("ADC"), received a "disciplinary" for violation of a behavior rule. As a result of receiving the disciplinary, McKinnon claimed that he was transferred to a higher security unit, assigned to administrative segregation, placed in administrative punitive segregation for thirty days, reduced in his inmate class status, and forced to forfeit good-time credit. The disciplinary action was upheld at a hearing conducted at the unit where McKinnon was housed. McKinnon then appealed the disciplinary action to the warden of his unit, and then to Larry Norris, Director of the Arkansas Department of Correction, who also affirmed the decision.

Subsequently, McKinnon filed a petition for writ of habeas corpus and a petition for declaratory judgment in the Circuit Court of Lincoln County pertaining to the disciplinary action. The State filed a motion to dismiss both the petition for writ of habeas corpus and petition for declaratory judgment. The trial court denied the petition for writ of habeas corpus in a preliminary order filed December 16, 2004. Therein, the trial court found that the thirty-day punitive restriction had already been served, and thus the petition was moot.

The trial court held a hearing on McKinnon's declaratory judgment complaint. The trial court granted the State's motion to dismiss the declaratory relief complaint in an order filed on February 2, 2005, finding a lack of justiciable controversy as required to maintain an action for declaratory judgment. Appellant McKinnon, proceeding pro se, has lodged a timely appeal in this court from that order. We find no error and affirm the trial court's decision.

On appeal, appellant argues four points for reversal: (1) the trial court erred when it denied appellant's petition for writ of habeas corpus; (2) the trial court erred when it denied appellant's petition for declaratory judgment; (3) the trial court erred when it denied appellant's petition for declaratory judgment without making findings of fact and conclusions of law; (4) the trial court erred when it overruled appellant's objection to testimony by a witness regarding alleged past bad acts of appellant.

We do not reverse a denial of postconviction relief unless the trial court's findings are clearly erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 64, 146 S.W.3d 871, 876 (2004). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).

In his first point on appeal, appellant argues that the trial court erred in denying his petition for writ of habeas corpus. Appellant claims that seeking a habeas writ was proper because the disciplinary action he received extended the total period of his incarceration.² Without a reduction of appellant's sentence based on the ability to earn good-time credit, appellant claims he is subject to an "unlawful confinement" due to the extension of the time he will be incarcerated.

A writ of habeas corpus will issue only if the commitment was invalid on its face or where the sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. Taylor v. State, 354 Ark. 450, 125 S.W.3d 174 (2003); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997) (per curiam).

Appellant here does not challenge the original sentence he received as being invalid or claim that the original trial court lacked subject-matter jurisdiction when appellant received his sentence of forty years' incarceration. Further, appellant does not appear to challenge the thirty-day confinement he received as a result of the disciplinary action. Rather, appellant claims a right of entitlement to receive statutory good-time credit to reduce the sentence to be served. Appellant reasons that by his being deprived of that right as a result of receiving the disciplinary action, he is being unlawfully confined and the time on his current sentence is being lengthened.

In his argument to this court, appellant cites Ark.Code Ann. § 16-90-121 (1987) and an unpublished per curiam opinion of this court as the basis for his claim. In response, the State argues that pursuant to Ark.Code Ann. § 12-29-201 (Repl.1995), meritorious good time will not reduce the length of appellant's sentence, but only affect his transfer eligibility date.

Section 16-90-121 provides:

Any person who pleads guilty or nolo contendere to, or is found guilty of, a second or subsequent felony involving the use of a firearm shall be sentenced to a minimum term of imprisonment of ten (10) years in the state prison without eligibility of parole or community punishment transfer but subject to reduction by meritorious good-time credit.

Appellant's reliance on this statute is misplaced for two reasons. First, appellant was sentenced for rape, not for committing a second felony involving the use of a firearm. Thus, the statute is inapplicable to appellant's factual situation. Second, this statute does not nullify Ark.Code Ann. § 12-29-201(d), which plainly states that "[m]eritorious good time will not be applied to reduce the length of a sentence." Instead, the statute relied upon by appellant actually supports the application of meritorious good time to an inmate's transfer eligibility date as explained in Ark.Code Ann. § 12-29-201(e)(1).

Additionally, appellant's original petition for writ of habeas corpus claimed a "state[-]created right and liberty interest in expecting officials to obey and follow A.D.C. rules, policies and procedure [and] the complained[-]of denial of due process has risen to cruel and unusual punishment when intentionally done and knowingly depriving petitioner of liberty by extending incarceration."³ While appellant did not couch his argument on appeal in terms of a specific constitutional issue, appellant's argument nonetheless contemplates a constitutional claim of an improper taking of a liberty interest without substantive due process. However, meritorious good time does not apply to reduce the length of a sentence as noted above. As a result, Arkansas has not created a liberty interest in good time under the constitutional analysis in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), cited by both parties.⁴ Thus, an implied claim for a substantive due process violation cannot be supported.

A petition for writ of habeas corpus is not the proper method with which to claim a statutory violation or to challenge the constitutionality of a purported taking. Pursuant to the stated purpose of a petition for writ of habeas corpus, appellant has failed to allege or show that the original commitment was invalid on its face or that the original sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. We find that the trial court's denial of the petition for writ of habeas corpus was not clearly erroneous and affirm.

We next turn to appellant's second point on appeal. Appellant posits that the trial court erred when it denied appellant's complaint for declaratory judgment. In his brief to this court, appellant states, "Appellant's request for Declaratory Judgment was based solely on the fact that [ADC] procedures were not complied with, and as a result of their non-compliance Appellant was denied Fundamental Due Process."

With regard to actions for declaratory judgment, in Martin v. Equitable Life Assurance Society, 344 Ark. 177, 40 S.W.3d 733 (2001), we stated:

A declaratory judgment declares rights, status, and other legal relationships whether or not further relief is or could be claimed. The proceeding is intended to supplement rather than supercede ordinary causes of action. Declaratory-judgment procedure is not a proper means of trying a case. A declaratory-relief action is not a substitute for an ordinary cause of action. Rather it is dependent on and not available in the absence of a justiciable controversy.

344 Ark. at 181, 40 S.W.3d at 736 (citations omitted). Typically, declaratory relief will be utilized to determine the construction and validity of a "deed, will, written contract, or other writings" when the respective rights and status of parties are affected. Ark.Code Ann. § 16-111-104 (1987).

In the instant case, while incarcerated at the Diagnostic Unit, appellant submitted a urine sample at the instruction of a prison officer. The results of testing appellant's urine sample indicated that the sample had been diluted. Appellant was written up for violating behavior rule 02-16, "[r]efusal to submit to substance abuse testing for determination of violation of Rule 02-2." Behavior rule 02-2 lists individual disruptive behavior to include being "[u]nder the influence of an/or any use of illegal drugs, alcohol, intoxicating chemicals or any medication in an un authorized manner." Appellant received a hearing on the matter after being transferred to the Cummins Unit. The hearing officer upheld the...