Cleveland Brazell v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

CLEVELAND BRAZELL

Appellant

v.

STATE OF ARKANSAS

Appellee

04-467

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF LINCOLN COUNTY, NO. LCV 2003-57-5, HON. FRED DAVIS, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1974, Cleveland Brazell entered a plea of guilty to murder in the first degree and was sentenced to life imprisonment. He subsequently filed in the trial court an untimely petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, which was denied. Brazell appealed from the order, and this court dismissed the appeal. Brazell v. State, CR 89-199 (Ark. September 18, 1989).

In 2003, Brazell 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 asks that an extension of time to file his brief-in-chief be granted.

The appeal is dismissed as it is clear that appellant could not succeed on appeal. The motion for extension of time is 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 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).

Appellant contended in the habeas petition that: (1) he was innocent of the offense of which he was convicted; (2) there was newly discovered evidence to prove his innocence in the form of an exculpatory autopsy report; (3) the State falsified the cause of the victim's death; (4) the State failed to disclose the exculpatory autopsy report; (5) his arrest was illegal; (6) he was improperly interrogated; (7) he was not afforded effective assistance of counsel; and (8) the trial court lacked jurisdiction in that it failed to comply with the procedural rules for accepting a plea of guilty. As none of the claims was sufficient to show that the commitment was facially invalid or that the trial court lacked jurisdiction, the court did not err in declining to issue a writ of habeas corpus.

Appeal dismissed; motion moot.