Elton Eddie Johnson v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

OCTOBER 11, 2001

ELTON EDDIE JOHNSON

Appellant

v.

LARRY NORRIS, DIRECTOR,

ARKANSAS DEPARTMENT

OF CORRECTION

Appellee

01-462

PRO SE MOTION TO FILE BELATED REPLY BRIEF [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 01-24-1-3, HON. FRED DAVIS, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

In 1998, Elton Eddie Johnson was found guilty by a jury of two counts of rape for which an aggregate sentence of 480 months' imprisonment was imposed. The court of appeals affirmed. Johnson v. State, CACR 98-1188 (Ark. App. May 12, 1999). In 2001, Johnson 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 Johnson now seeks leave to file a belated reply brief.

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).

Appellant contended in the petition for writ of habeas corpus that: (1) the trial court erred in allowing the municipal court to alter or amend the affidavit of probable cause; (2) the trial court did not have jurisdiction to amend its Judgment and Commitment order; (3) the trial court lacked jurisdiction because the special prosecutor was not authorized by statute; (4) the trial court erred in denying trial counsel's request to remove the special prosecutor; (5) the trial court erred in permitting the testimony of two witnesses who testified after a recess because it did not declare the court to be in session after the recess; (6) the Judgment and Commitment order was invalid because the original document did not state whether the sentences were to be served concurrently or consecutively and did not reflect the total sentence to be served; (7) the Judgment and Commitment order was invalid because the trial judge's name was not printed in the appropriate place; (8) the circuit judge's signature on the original Judgment and Commitment order did not match the judge's signature on the amended order; (9) the trial court lacked jurisdiction to enter an amended judgment; (10) the amended Judgment and Commitment order was invalid because not all the blanks on the order were filled in and the prosecutor's report had the wrong case number; (11) the sentence was illegal because the Information was based on the municipal court affidavit after the municipal court no longer had jurisdiction over the case; (12) his arrest was illegal; (13) his confession was coerced; (14) his plea and arraignment proceeding was delayed; (15) the search of his residence was illegal; (16) he was denied effective assistance of counsel; (17) he was denied a speedy trial; (18) the jury did not specify whether he was found

guilty of rape by forcible compulsion or deviate activity; and (19) incorrect instructions were given the jury. There were a myriad of sub-points to the claims.

Appellant was charged in Saline County with offenses committed in that county and tried there. The claims raised by appellant did not demonstrate that the court's jurisdiction was not in Saline County. The sentence imposed on each count of rape was within the statutory range for the offense. The court did not err when it concluded that appellant had not shown that he was entitled to release from custody on a writ of habeas corpus.

Appellant's motion to file a belated reply brief is denied and the appeal dismissed 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).

Motion denied and appeal dismissed.