Tommy Ray Mosley v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-243

NOT DESIGNATED FOR PUBLICATION

TOMMY RAY MOSLEY

Appellant

v.

STATE OF ARKANSAS

Appellant

Opinion Delivered May 12, 2005

PRO SE MOTIONS FOR EXTENSION OF TIME TO FILE BRIEF AND FOR PRODUCTION OF DOCUMENTS AT PUBLIC EXPENSE [CIRCUIT COURT OF GARLAND COUNTY, NO. CR 94-486-1, JOHN HOMER WRIGHT, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT

PER CURIAM

In 1995, Tommy Ray Mosley was found guilty of rape and sentenced as a habitual offender to life imprisonment. We affirmed. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). Mosley subsequently filed in the trial court a petition pursuant to Ark. R. Crim. P. 37, which was denied. On January 11, 2005, Mosley, who was incarcerated in Lincoln County, filed a pro se petition for writ of habeas corpus in the trial court in Garland County. The petition was denied, and the record on appeal from that order has been lodged here.

Mosley now seeks by pro se motion an extension of time to file the appellant's brief. He also seeks a copy of certain documents at public expense. As we find that he could not be successful on appeal, the appeal is dismissed. The motions are 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) (per curiam); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v.State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam). Appellant said in the petition for writ of habeas corpus that he was in custody in Lincoln 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 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 Garland 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; motions moot.