William L. Dewitt v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-996

NOT DESIGNATED FOR PUBLICATION

WILLIAM L. DEWITT

APPELLANT

VS.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered November 18, 2004

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT, NO. CR 03-37-5, HON. JERRY E. MAZZANTI, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted of rape, two counts, and incest, and was sentenced to a total of sixty year's imprisonment. We affirmed on direct appeal. See Dewitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991). On April 23, 2003, appellant filed in the Chicot County Circuit Court a petition seeking a writ of habeas corpus. The circuit court denied the petition. Appellant also filed a motion for default judgment because the State failed to file a response prior to the order denying relief. The circuit court denied appellant's motion as well. We affirm.

In this appeal, appellant has failed to comply with our briefing rules. See Ark. Sup. Ct. R. 4-2. His brief consists of a one paragraph argument and an addendum. Nonetheless, we are not affording an opportunity to cure the deficiencies because it is clear from our review of appellant's claims that he could not prevail on appeal. 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. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003).

Appellant raised several claims in his petition. He contended that insufficient evidence supported his rape convictions, that the prosecutor knowingly used false evidence and suppressed evidence favorable to his defense, and that his trial counsel provided ineffective assistance. He also claimed that the trial court lacked jurisdiction because the alleged rapes occurred in Louisiana, not Arkansas. In denying the petition, the circuit court concluded that only appellant's jurisdictional claim could be raised in a petition for writ of habeas corpus. In regards to that claim, the circuit court ruled that this court had decided the issue against appellant in his direct appeal and that appellant was bound by our decision. We agree.

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). 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 Arkansas Rule of Criminal Procedure 37. Cothrine v. State, 322 Ark. 112, 114, 907 S.W.2d 134, 135 (1995).

The circuit court correctly concluded that only appellant's claim of lack of jurisdiction was cognizable. On direct appeal, we rejected appellant's claim that the trial court lacked jurisdiction over the charges of rape. Dewitt, 306 Ark. at 561-62, 815 S.W.2d at 943-44. We noted that while the first offense may have occurred in Louisiana, the evidence showed that the crime was repeated numerous times after appellant moved to Arkansas. Id. at 562, 815 S.W.2d at 943-44. The doctrine of law of the case dictates that a decision made in a prior appeal may not be revisited in a subsequent appeal. Cloird v. State, 352 Ark. 190, 194, 99 S.W.3d 419, 422 (2003). The doctrine of law of the case applies here.

Additionally, appellant contends that the circuit court erred in denying his motion for default judgment. Appellant has cited no authority in support of his argument that he was entitled to a writ of habeas corpus by default. Moreover, as the circuit court concluded in its order denying the motion, appellant did not allege any grounds that would entitle him to relief, regardless of the timeliness of the State's response. Accordingly, we affirm the order of the circuit court denying appellant's petition for writ of habeas corpus.

Affirmed.