Stephen Graves v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

May 13, 2004

STEPHEN GRAVES

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 04-146

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 2000-575, MARION HUMPRHEY, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 2000, Stephen Graves entered a plea of guilty in the Circuit Court of Pulaski County to the offense of sexual abuse in the first degree. A sentence of 120 months' imprisonment was imposed.

On October 16, 2003, Graves, who was incarcerated in Lincoln County, filed a petition for writ of habeas corpus in the trial court in Pulaski County on the ground that the trial court had lacked jurisdiction of his case and thus the judgment of conviction was invalid. The petition was denied, and the record on appeal from that order has been lodged here.

Appellant Graves now seeks by pro se motion an extension of time to file the appellant's brief. As we find that appellant could not be successful on appeal, the appeal is dismissed. The motion 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). Appellant said in the petition for writ of habeas corpus that he was in custody in Lincoln

County when he filed the petition in the trial court in Pulaski County. The petition filed in the trial court was not filed pursuant to Act 1780 of 2001. Act 1780 amended Arkansas's state habeas corpus statute to provide that a writ could issue to any person "who has alleged actual innocence of the offense or offenses for which the person was convicted....in accordance with §16-112-201 et seq." Ark. Code Ann. §16-112-103(a)(1). Petitions filed pursuant to Act 1780 may be filed and heard in the trial court. All other petitions for writs of habeas corpus should be filed in the county in which the petitioner is being held in custody.

As appellant's petition was not filed under the act, it should have been addressed to the Circuit Court of Lincoln County. The Circuit Court of Pulaski County did not have jurisdiction to release on a writ of habeas corpus not sought under Act 1780 a prisoner not in custody within that county See Pardue, supra; Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appeal dismissed; motion moot.