Kevin Ellison v. Department of Human Services and State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 15, 2001

KEVIN ELLISON

Petitioner

v.

DEPARTMENT OF HUMAN SERVICES and STATE OF ARKANSAS

Respondents

00-1140

PRO SE MOTIONS FOR RECONSIDERATION OF PETITION FOR WRIT OF HABEAS CORPUS AND TO SUPPLEMENT RECORD [PROBATE COURT OF PHILLIPS COUNTY, NO. P 99-123]

MOTIONS DENIED

On May 18, 1999, Kevin Ellison was acquitted of a felony criminal offense by reason of mental disease or defect and committed to the custody of the Director of the Department of Human Services for evaluation and treatment. On June 30, 1999, an order was entered by the Probate Court of Pulaski County declaring that Ellison should remain in the custody of the Director of the Department of Human Services for continued treatment. That court subsequently entered an order of conditional release on July 28, 1999, directing that Ellison reside in a residential care facility in Phillips County, Arkansas. On September 11, 2000, the Probate Court of Phillips County entered a modified order of conditional release finding that Ellison had violated the terms of the conditional release order and committing him to the Arkansas State Hospital pursuant to Ark. Code Ann. § 5-2-316 (b).

Kevin Ellison subsequently filed a pro se petition for writ of habeas corpus asking that thiscourt " cancel" his " Act 911 of 1989" under which he was committed and his acquittal by reason of mental disease or defect. The petition was denied. Ellison v. Department of Human Services, et al (October 12, 2000). Ellison now asks that the decision be reconsidered and the record supplemented. As grounds for the motions, petitioner reiterates much of the original petition.

As we said when the petition was denied, it is well settled that the burden is on the petitioner in an habeas corpus action to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995); Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). The issues raised by petitioner Ellison do not constitute a showing by affidavit or other evidence that the trial court lacked jurisdiction or that the commitment was invalid on its face.

Motions denied.