James Leggins v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
SEPTEMBER 11, 2003

JAMES LEGGINS

Appellant

v.

LARRY NORRIS, Director,

Arkansas Department of Correction

Appellee

02-1018

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, CV-2002-169, HONORABLE HAROLD S. ERWIN, JUDGE

AFFIRMED

Per Curiam

In 1979, this court reversed appellant's aggravated-robbery convictions because there was insufficient proof that he was a habitual offender. Leggins v. State, 267 Ark. 293, 590 S.W.2d 22 (1979). On retrial, appellant again was found guilty of two counts of aggravated robbery, and he was sentenced to two consecutive terms of life imprisonment. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). On appeal, we rejected the same argument appellant raised in his first appeal, concluding that the State had cured the evidentiary deficiency in the first trial which caused reversal. Id. In 2002, appellant filed a pro se petition for writ of habeas corpus, alleging that the trial court lacked jurisdiction to retry him as a habitual offender because of double jeopardy protections, and that the judgment of conviction was invalid on its face. The circuit court denied the petition without a hearing. We affirm.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). A 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 so detained. Flowers v. Norris, 347 Ark. 760, 763-64, 68 S.W.3d 289, 291 (2002)(citing Ark. Code Ann. § 16-112-103 (1987)). This court treats allegations of void or illegal sentences as it does issues of subject-matter jurisdiction, in that it reviews such allegations whether or not an objection was made in the trial court. Id. at 764, 68 S.W.3d at 291. While a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial, the writ is appropriate when a person is detained without lawful authority. Cloird v. State, 349 Ark. 33, 40, 76 S.W.3d 813, 817 (2002). Detention for an illegal period of time is precisely what a writ of habeas corpus is designed to correct. Renshaw v. Norris, 337 Ark. 494, 497, 989 S.W.2d 515, 517 (1999). A habeas corpus proceeding, however, does not afford a prisoner an opportunity to retry his case. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). It is appellant's burden to bring forth a record that demonstrates error. Id. at 421, 13 S.W.3d at 145.

In this appeal, appellant has abandoned his challenge to the facial validity of the judgment of conviction. His sole argument is that double jeopardy extinguished the trial court's jurisdiction to retry him for being a habitual offender after this court reversed and remanded his case for insufficient proof on that matter.

We first note that appellant has failed to produce a record on appeal that demonstrates error because neither the record nor appellant's brief contains the judgment of conviction that he challenges. Although appellant has motioned to supplement the record and our current rules provide a fifteen day opportunity for an appellant to cure any deficiencies in his brief, such efforts would be futile because it is clear that appellant could not prevail on appeal. See Ark. Sup. Ct. R. 4-2(b)(3) (2003). 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 appeal is wholly without merit. E.g., Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999).

The appeal is without merit because the United States Supreme Court has held that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in noncapital sentencing proceedings. Monge v. California, 524 U.S. 721 (1998). Accordingly, the circuit court's order is affirmed.

Affirmed.

Thornton, J., not participating.