Willie S. Boatman v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 24, 2001

WILLIE S. BOATMAN

Appellant

v.

STATE OF ARKANSAS

Appellee

01-419

PRO SE MOTIONS FOR APPOINTMENT OF COUNSEL AND FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF JACKSON COUNTY, NO. CIV 00-143, HON. HAROLD S. ERWIN, JUDGE]

MOTIONS DENIED AND APPEAL DISMISSED

In 1999, Willie S. Boatman pleaded guilty to multiple felony offenses and was sentenced as a habitual offender to an aggregate term of eighty years' imprisonment. In 2000, Boatman filed in the circuit court in the county in which he was incarcerated a petition for writ of habeas corpus. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Boatman now requests appointment of counsel and an extension of time to file the appellant's brief.

Appellant contended in the petition for writ of habeas corpus that he was denied effective assistance of counsel in the guilty plea proceeding. He further asserted that the eighty-year sentence imposed was excessive for the offenses committed. The sentence imposed was within the statutory range for the offenses of which appellant was convicted, and he did not argue that the sentence was outside the statutory range, only that he did not deserve such a lengthy sentence. It is well settled that the burden is on the petitioner in a 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 of the commitment 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). Allegations of ineffective assistance of counsel which do not pertain directly to a showing that the trial court lacked jurisdiction or that the commitment was invalid are not cognizable in a petition for writ of habeas corpus. Such allegations are properly raised in a timely petition pursuant to Criminal Procedure Rule 37. See Mackey v. State, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appellant's motions for appointment of counsel and an extension of time are denied and the appeal dismissed as it is clear that the appellant could not succeed on appeal inasmuch as neither allegation raised in the habeas petition was sufficient to demonstrate that the commitment was invalid or that the trial court lacked jurisdiction. 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).

Motions denied and appeal dismissed.