Ricky L. Neal v. Larry Norris

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 1, 2001

RICKY L. NEAL

Petitioner

v.

LARRY NORRIS

Respondent

CR 00-30

PRO SE MOTIONS TO AMEND ADDENDUM AND TO FILE SUPPLEMENTAL ARGUMENT [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CIV 99-454-2-3]

MOTIONS MOOT; APPEAL DISMISSED

In 1995, Ricky L. Neal was found guilty in separate trials of the offenses of felon in possession of a firearm and false imprisonment. He was sentenced as a habitual offender to an aggregate consecutive sentence of forty-five years' imprisonment. The cases were consolidated on appeal, and the court of appeals affirmed both judgments. Neal v. State, CR 96-1447 (1997). In 1999, Neal filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus seeking release from custody. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Neal now seeks by pro se motion to amend the addendum to the appellant's brief and for leave to supplement the argument portion of the brief.

We declare the motions 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 he was entitled to be released from custody on the grounds that: his attorney was ineffective; he was convicted of the two offenses in violation of the constitutional provisions against double jeopardy; he did not receive a fair and impartial trial; and he was not allowed to assist in his own defense. 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 issues 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 was invalid on its face.

Motions moot; appeal dismissed.