Billy R. Scott v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 12, 2000

BILLY R. SCOTT

Appellant

v.

STATE OF ARKANSAS

Appellee

00-437

PRO SE MOTION FOR COURT TO FOLLOW SUPREMACY CLAUSE [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 00-40-2-3, HON. FRED DAVIS, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1989, Billy Ray Scott was found guilty by a jury of murder in the first degree and was sentenced as an habitual offender to 200 years' imprisonment. After trial, Scott filed a petition for postconviction relief which was denied. The appeals of the judgment of conviction and the order denying postconviction relief were consolidated, and we affirmed both. Scott v. State, 303 Ark. 197, 795 S.W.2d 353 (1990).

In 2000, Scott filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Scott now asks by motion that this court follow the Supremacy Clause of the United States Constitution when ruling on the appeal.

We declare the motion moot and dismiss the appeal as it is clear that the appellant could not succeed on appeal. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could

not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Appellant contended in the petition for writ of habeas corpus that the sentence imposed on him was illegal because a 200-year sentence exceeded the statutory maximum sentence for first-degree murder. He argued that the sentencing statute which provided that as an habitual offender with more than four prior felony convictions he was subject to an extended term of imprisonment for murder in the first degree of "not less than forty (40) years nor more than life," Ark. Code Ann. § 5-4-501, did not encompass a 200-year sentence in that such a lengthy term would be longer than his life. Appellant reasoned that by electing to sentence him to a term of years rather life imprisonment, the jury did not intend for him to spend the rest of his life in prison. There is, however, no provision in the statute against sentencing a defendant to a number of years that exceeds normal life expectancy.

It is well settled that the burden is on the petitioner in an habeas corpus action 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. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). 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 (1987). See Wallace v. Willock, 301 Ark. 69,781 S.W.2d 478 (1989). The issue raised by appellant in the petition did not constitute a showing by affidavit or other evidence that the trial court lacked jurisdiction or that the judgment of conviction was invalid on its face.

Motion moot; appeal dismissed.