Tony E. Lea v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

February 26, 2004

TONY E. LEA

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 03-161

PRO SE MOTION FOR APPOINTMENT OF APPELLATE COUNSEL; APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 1995-2632, HONORABLE CHRIS PIAZZA, JUDGE

MOTION FOR APPOINTMENT OF APPELLATE COUNSEL MOOT; ORDER AFFIRMED

Per Curiam

Appellant was convicted of rape and sentenced to eighteen years' imprisonment. The Arkansas Court of Appeals affirmed. Lea v. State, CA CR 96-1348 (Ark. App. June 18, 1997). Appellant filed a petition for a writ of habeas corpus in the Circuit Court of Pulaski County alleging the following: (1) ineffective assistance of counsel, (2) that he was denied the right to confront witnesses, (3) insufficient evidence, (4) prosecutorial misconduct, and (5) actual innocence. The circuit court denied appellant's petition, and from that order comes this appeal. Appellant has also filed a motion for appointment of appellate counsel. We affirm the court's denial of relief but for different reasons, see Williams v. State, 343 Ark. 591, 604, 36 S.W.3d 324, 332-33 (2001), and because it is clear that appellant cannot prevail on appeal, the motion for appointment of counsel is moot.

The circuit court does not have jurisdiction to release a prisoner on a writ of habeas corpus who is not in custody in that court's jurisdiction. Mackey v. Lockhart, 307 Ark. 321, 322, 819 S.W.2d 702, 704 (1991). Accordingly, because appellant is incarcerated in Kansas, a writ of habeas corpus issued by the court in Pulaski County could not be returned to effect the petitioner's release inasmuch as the petitioner is not present within that court's jurisdiction.

Even if the circuit court could grant relief, it was not warranted as appellant has failed to raise a claim upon which a writ of habeas corpus could issue. 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). None of appellant's claims demonstrate that the trial court lacked jurisdiction or that the judgment of conviction was invalid on its face. A habeas corpus proceeding 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). Nor does it act as a substitute for a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Cothrine v. State, 322 Ark. 112, 114, 907 S.W.2d 134, 135 (1995). Accordingly, we affirm the order of the circuit court denying appellant's petition. Because appellant cannot succeed on appeal, his motion for appointment of appellate counsel is moot.

Motion moot; order affirmed.