Robert L. Dennis v. Honorable Fred Davis, Judge

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 26, 2004

ROBERT L. DENNIS

Petitioner

v.

HONORABLE FRED DAVIS, JUDGE

Respondent

04-84

PRO SE PETITION FOR WRIT OF MANDAMUS [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2003-776-5]

PETITION DENIED

Per Curiam

On January 22, 2004, Robert L. Dennis, who is in the custody of the Arkansas Department of Correction, filed a petition for writ of mandamus in this court. He contended in the mandamus petition that the Honorable Fred Davis, Circuit Judge, had failed to grant a default judgment filed in connection with a petition for writ of habeas corpus filed in his court. He asked that this court issue a writ to compel Judge Davis to grant the relief requested in the default judgment.

Judge Davis has responded to the mandamus petition, contending that petitioner Dennis is not entitled to a default judgment to release him from incarceration by means of writ of habeas corpus. Davis also stated that petitioner has never served the petition for writ of habeas corpus on the respondent pursuant to Ark. R. Civ. P. 4(d)(7), although the time to do so has not expired pursuant to Ark. R. Civ. P. 4(I). Thus, a default judgment under Ark. R. Civ. P. R. 55(a) would be premature even if available in a habeas proceeding, a point which Judge Davis disputes.

The mandamus petition is denied. First, as petitioner has not effected service on the respondent of the petition for writ of habeas corpus, the time for an answer has not begun to run. Accordingly, petitioner has not shown that respondent has been dilatory with respect to a pleading filed in his court.

More importantly, even if the habeas petition had been served, petitioner would not been titled to a writ compelling respondent to grant the motion for default judgment. Mandamus will lie only to enforce performance of a legal right that has been established by statute, rule, or case law. Rothbaum v. Arkansas Local Police, 346 Ark. 171, 55 S.W.3d 760 (2001); Hicks v. Gravette, 312 Ark.407, 849 S.W.2d 946 (1993). Its purpose is not to compel a respondent to grant relief sought in a pleading to which he does not have an established right. Id. The burden is on the petitioner to demonstrate the legal right and establish the absence of any adequate remedy other than mandamus. State v. Roberts, 321 Ark. 31, 900 S.W.2d 175 (1995). Petitioner here has not shown that he has an established right to the default judgment sought by him.

Petition denied.