Willie Houston v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-552

NOT DESIGNATED FOR PUBLICATION

WILLIE HOUSTON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 9, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 88-474, HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

PER CURIAM

In 1988, Willie Houston was found guilty by a jury of murder in the first degree and sentenced as a habitual offender to a term of ninety-nine years' imprisonment. We affirmed. Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989). Houston subsequently filed a petition pursuant to Criminal Procedure Rule 37.1 challenging the judgment which we denied. Houston v. State, CR 88-194 (December 10, 1990).

In 2003, Houston filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified as Ark. Code Ann. § 16-112-201--207 (Supp. 2003), the trial court denied the petition without a hearing and Houston now brings this appeal of that order. We affirm.

Act 1780 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. See Ark. Code Ann. §§ 16-112-103(a)(1), and 16-112-201--207 (Supp. 2003); see also Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). A circuit court need not hold a hearing if the petition and the files and records show that a petitioner is not entitled to relief. Ark. Code Ann. § 16-112-205(a) (Supp. 2003). Here, the court indicated in its order that appellant's petition failed to list any evidentiary items to be tested. We agree and affirm the trial court's dismissal of the petition.

Arkansas Code Annotated § 16-112-202 (Supp. 2003) provides that "a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence if: (A) The testing is to be performed on evidence secured in relation to the trial which resulted in the conviction; and (B) The evidence was not subject to the testing because either the technology for the testing was not available at the time of the trial or the testing was not available as evidence at the time of the trial." Further, a petitioner seeking testing under Act 1780 must first present a prima facie case that identity was an issue at trial and the evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material aspect. Ark. Code Ann. § 16-112-202(c) (Supp. 2003). See also, Graham v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004) (per curiam).

Here, as the trial court found, appellant's petition did not indicate the evidence that was to be tested, much less provide a showing that it had been subject to a sufficient chain of custody. In fact, the petition does not indicate what tests appellant would request, although the trial court assumed in its order that DNA testing was requested. In his reply brief, appellant asserts he should have fingerprint and DNA testing performed, but, even on appeal, appellant never points to any evidence that should be so tested.

Clearly, appellant did not submit an adequate petition to the trial court on which to grant relief under Act 1780. The court did not err in dismissing the petition without a hearing.

Affirmed.