Smith v. Hobbs

• Decision Date: 27 September 2012
• Docket Number: No. 12-308,12-308
• Parties: JOHN J. SMITH APPELLANT v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
• Court: Arkansas Supreme Court

2012 Ark. 360

JOHN J. SMITH APPELLANT

v.RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE

No. 12-308

SUPREME COURT OF ARKANSAS

Opinion Delivered September 27, 2012

PRO SE MOTIONS FOR

EXTENSION OF BRIEF TIME AND

FOR TRANSCRIPT, PRO SE

PETITION FOR WRIT OF

CERTIORARI [PRO SE APPEAL

FROM THE LINCOLN COUNTY

CIRCUIT COURT, LCV 11-125,

HON. JODI RAINES DENNIS,

JUDGE]

APPEAL DISMISSED; MOTIONS AND

PETITION MOOT.

PER CURIAM

Appellant John J. Smith pled guilty to a charge of aggravated robbery, pursuant to a negotiated plea agreement, and he was sentenced to 180 months' incarceration in the Arkansas Department of Correction ("ADC"). Subsequently, appellant filed in the circuit court a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2009), which was denied. No appeal was taken from that denial.

On December 13, 2011, appellant filed in the county in which he is incarcerated a petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2006). The circuit court denied appellant's petition by written order, and appellant timely filed an appeal from that denial. Now before us are appellant's pro se motions for extension of time in which to file his brief-in-chief and for a copy of the transcript of the hearing held on his habeas-corpus petition in the Lincoln County Circuit Court, along withhis petition for writ of certiorari. We need not consider the motion, however, as it is clear that appellant could not prevail if his appeal were allowed to proceed. An appeal from an order that denied 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. Wilencewicz v. Hobbs, 2012 Ark. 230 (per curiam); Fudge v. Hobbs, 2012 Ark. 80 (per curiam); Willis v. Hobbs, 2011 Ark. 509 (per curiam); Russell v. Howell, 2011 Ark. 456 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam).

A writ of habeas corpus is only proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Fudge, 2012 Ark. 80 (citing Abernathy v. Norris, 2011 Ark. 335 (per curiam)). 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. Craig v. Hobbs, 2012 Ark. 218 (per curiam); Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). To meet this burden, a petitioner 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. See Culbertson v. State, 2012 Ark. 112 (per curiam); Ark. Code Ann. § 16-112-103(a)(1).

Appellant's original petition raised two claims as bases for habeas relief. First, he asserted that his conviction is invalid because, at the time that he entered his guilty plea, appellant believed that he would serve only seventy percent of his sentence before he became eligiblefor parole, yet he was sentenced under Arkansas Code Annotated section 16-93-609 (Repl. 2005), which does not allow for parole. While appellant's petition is not entirely clear, the gravamen of his argument seems to be that he was not told, prior to entering his guilty plea, that section 16-93-609 would apply to his sentence. However, he failed to demonstrate how this allegation would make the judgment against him facially invalid or to support his claim "by affidavit or other evidence of probable cause" to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(1).

Even assuming that appellant's claim is true, it is clear that his argument is not cognizable in a petition for writ of habeas corpus. A habeas-corpus proceeding in state court is generally unavailable for challenging parole matters. See Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987). Appellant does not contend that section 16-93-609 should not have been applied to him; at most, he seems to contend that he was not informed about the statute's applicability prior to entering his plea. To the extent that appellant believes that his attorney should have informed him about the statute, such a claim would be tantamount to an allegation of ineffective assistance of counsel, and ineffective-assistance claims are not cognizable in petitions for writ of habeas corpus. See Tarkington v. Norris, 2012 Ark. 147 (per curiam). All claims of ineffective assistance must be brought under a timely Rule 37.1 petition, and a petition for writ of habeas corpus is not a substitute for a timely petition for postconviction relief. See id. (citing Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam)).

Nor was the circuit court under any duty to explain issues of parole eligibility toappellant prior to sentencing. See Wells v. State, 279 Ark. 55, 648 S.W.2d 466 (1983) (noting that requiring the court or its officers to explain parole eligibility to a defendant would be to encourage the judiciary to encroach upon the executive department of government). As neither the court nor appellant's attorney was under a duty to explain the applicability of section 16-93-609 to appellant, appellant's petition for writ of habeas corpus based on this argument fails to demonstrate that his judgment was invalid on its face or that he is otherwise illegally detained.

As his second basis for writ of habeas corpus, appellant contended that he was denied his...