Gary Cloird v. Greg Harmon, Warden

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

June 19, 2003

GARY CLOIRD

Appellant

v.

GREG HARMON, WARDEN

Appellee

03-272

PRO SE MOTIONS TO CONSOLIDATE RECORD, FOR APPOINTMENT OF COUNSEL, AND FOR ACCESS TO TRIAL TRANSCRIPT [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2002-921-5, HON. FRED DAVIS, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

In 1992, Gary Cloird was found guilty of rape and theft of property. An aggregate sentence of thirty-five years' imprisonment and a fine of $1,000 were imposed. We affirmed. Cloird v. State, 314 Ark. 296, 862 S.W.2d 211 (1993).1

In 2002, Cloird filed in the circuit court in the county in which he was incarcerated a petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Cloird now asks that counsel be appointed to represent him, that he be granted access to the transcript of his trial, and that the record in this appeal be consolidated with the trial record.

The appeal is dismissed as it is clear that the appellant could not succeed on appeal. The motions are moot. 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).

It is well settled that the burden is on the petitioner in a 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 of the commitment 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).

Appellant said in the petition for writ of habeas corpus that at his trial testimony was given about more than one theft but the jury verdict did not state of which theft he was found guilty; and that, as a result, the commitment was invalid. He further argued that the jury instruction on theft was inadequate. The issues, however, could have been addressed at trial and are not sufficient to deprive the court of jurisdiction or render the commitment invalid. It can be concluded by examining the face of the habeas petition that the court did not err when it concluded that appellant had not shown that he was entitled to release from custody on a writ of habeas corpus.

Appeal dismissed; motions moot.

Corbin, J., not participating.

1 Cloird has filed multiple petitions for writs of habeas corpus in this court as well as in circuit court. The procedural history of Cloird's case is set out at length in our opinion issued on March 6, 2003. Cloird v. State, 352 Ark. ___, 99 S.W.3d 419 (2003).