Willis v. Hobbs

• Decision Date: 01 December 2011
• Docket Number: No. 11-489,11-489
• Citation: 2011 Ark. 509
• Parties: CARL EDWARD WILLIS APPELLANT v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION APPELLEE
• Court: Arkansas Supreme Court

2011 Ark. 509

CARL EDWARD WILLIS APPELLANT

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

No. 11-489

SUPREME COURT OF ARKANSAS

Opinion Delivered December 1. 2011

PRO SE MOTION FOR EXTENSION

OF BRIEF TIME [JEFFERSON

COUNTY CIRCUIT COURT, CV 2011-

53, HON. JODI RAINES DENNIS,

JUDGE

APPEAL DISMISSED; MOTION

MOOT.

PER CURIAM

Appellant Carl Edward Willis is a prisoner incarcerated in the Arkansas Department of Correction. He filed a petition for writ of habeas corpus in the circuit court of the county in which he is incarcerated, which was denied. Appellant lodged this appeal of that order, and he has filed a motion for an extension of time in which to file his brief. Because the petition was clearly without merit, we dismiss the appeal, and the motion is moot.

An appeal from an order that denied a petition for a 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. Hill v. Norris, 2010 Ark. 287 (per curiam). In this case, appellant's petition was clearly deficient. The burden is on the petitioner in proceedings for a 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. Daniels v. Hobbs, 2011 Ark. 192 (per curiam). Under our statute, a petitioner who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead eitherthe 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. Id.; Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006). Appellant's petition did not make the requisite showing of probable cause for the only potentially cognizable claim stated in the petition.

The petition listed a number of claims that alleged trial error and ineffective assistance of counsel. Claims of trial error and ineffective assistance are not cognizable in habeas proceedings. See Clem v. Hobbs, 2011 Ark. 311 (per curiam). Appellant could not employ a petition for writ of habeas corpus to serve as a substitute for a proceeding under Arkansas Rule of Criminal Procedure 37.1 (2005) or direct appeal. Id. Mere trial error does not deprive a court of jurisdiction. Wilkins v. Norris, 2011 Ark. 169 (per curiam).

Appellant's petition included claims concerning defects in the information that charged him, and most of those claims appeared to be additional allegations of trial error, asserting improper amendment of the information, lack of notice, and failure to include sufficient information to identify the crime, for example. Allegations that an information is defective generally are not considered to be jurisdictional and are treated as trial error. See Davis v. State, 2011 Ark. 88 (per curiam). Claims of a defective information that raise a jurisdictional issue, such as those that raise a claim of an illegal sentence, are cognizable in a habeas...