Billy Mack Nichols v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 15, 2001

BILLY MACK NICHOLS

Appellant

v.

STATE OF ARKANSAS

Respondent

01-969

PRO SE MOTIONS FOR EXTENSIONS OF TIME TO FILE BRIEF, FOR ORAL ARGUMENT, FOR TRIAL TRANSCRIPT, AND FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 01-339-3, HON. FRED DAVIS, JUDGE]

MOTIONS FOR EXTENSIONS OF TIME MOOT; MOTIONS FOR ORAL ARGUMENT, FOR TRIAL TRANSCRIPT, AND FOR APPOINTMENT OF COUNSEL DENIED AND APPEAL DISMISSED

Billy Mack Nichols was found guilty by a jury of battery, kidnapping, aggravated robberty, and theft of property and sentenced as a habitual offender to an aggregate term of fifty years' imprisonment. The court of appeals affirmed. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000).

On June 4, 2001, Nichols filed in the circuit court in the county in which he 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 Nichols now requests oral argument in the case, a copy of the transcript of his trial, and appointment of counsel. He has also filed two motions for extensions of time to file the appellant's brief.

The motions for extensions of time are moot inasmuch as appellant filed his brief by the date it was due. The remaining motions are 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. 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 evidence admitted against him at trial was obtained by means of an illegal search and seizure; the prosecution withheld evidence favorable to the defense; his attorney at trial was ineffective; and the trial and appellate courts used spurious means to deny him the right to be heard.

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). Appellant did not complain that the commitment was invalid or that the trial court lack jurisdiction.

Motions for extensions of time moot; motions for oral argument, for trial transcript, andfor appointment of counsel denied and appeal dismissed