Charles Whitfield v. J. Maples, Warden

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

April 29, 2004

CHARLES WHITFIELD

Appellant

v.

J. MAPLES, WARDEN

Appellee

04-300

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF JACKSON COUNTY, NO. CV 2003-220, HON. HAROLD S. ERWIN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

Charles Whitfield was found guilty by a jury of four counts of rape, one count of attempted rape, five counts of residential burglary, one count of attempted residential burglary, one count of second-degree battery, and one count of exposing another person to the human immunodeficiency virus. An aggregate sentence of life imprisonment was imposed. We affirmed. Whitfield v. State, 346 Ark. 43, 56 S.W.3d 357 (2001).

Whitfield subsequently filed a timely pro se petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 in the trial court which was denied on August 15, 2002. No appeal was taken. This court denied Whitfield's motion to proceed with a belated appeal. Whitfield v. State, CR 02-1389 (February 13, 2003) (per curiam).

On December 1, 2003, Whitfield 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 an appeal from the order has lodged been lodged here. Appellant Whitfield asks that counsel be appointed to represent him on appeal.

It is well settled that the burden is on the petitioner in a habeas corpus proceeding 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).

The appeal is dismissed as it is clear that appellant could not succeed on appeal. The motion for appointment of counsel is moot. Appellant contended that his arrest was invalid and that evidence was obtained by means of an illegal search and seizure. He further complained of errors in the course of the trial. The claims could have been raised at trial and are not sufficient to show that the commitment was facially invalid or that the trial court lacked jurisdiction. Thus, the court did not err in declining to issue a writ of habeas corpus.

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).

Appeal dismissed; motion denied.