Elizabeth Gammon Brown v. Bruce Beck, Warden

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 25, 2001

ELIZABETH GAMMON BROWN

Appellant

v.

BRUCE BECK, WARDEN

Appellee

00-270

PRO SE MOTION FOR EXTENSION OF TIME TO FILE REPLY BRIEF [CIRCUIT COURT OF JACKSON COUNTY, NO. CIV 99-178, HON. HAROLD ERWIN, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1994, Elizabeth Gammon Brown was found guilty by a jury of delivery of a controlled substance and sentenced as an habitual offender to fifty years' imprisonment. We affirmed. Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995).

In 1999, Brown filed in the circuit court in the county in which she was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Brown now seeks by motion an extension of time to file a reply brief.

We declare the motion moot and dismiss the appeal as it is clear that the appellant could not succeed on appeal. 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); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Appellant contended in the petition for writ of habeas corpus that the commitment issued in her case was invalid because she was committed to serve her term of imprisonment in the Arkansas Department of Correction but was instead serving her term in the McPhearson Unit, the facility where the department houses female prisoners. She based the argument on the conclusory allegation that the McPhearson Unit is not an "institution as described" by statute. 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. 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 issue raised by appellant in the petition did not constitute a showing by affidavit or other evidence that the trial court lacked jurisdiction or that the judgment of commitment which provided that appellant's term of imprisonment be served in the Arkansas Department of Correction was invalid on its face.

Motion moot; appeal dismissed.