Kenneth Talley v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

NOVEMBER 8, 2001

KENNETH TALLEY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CR 00-510

AN APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY,

NO. CR 92-602

HONORABLE JOHN LANGSTON,

CIRCUIT JUDGE

APPEAL DISMISSED

Appellant, Kenneth Lamond Talley, was convicted of delivery of a controlled substance and was sentenced as a habitual offender to forty-five years' imprisonment. Appellant filed this habeas corpus action alleging that his conviction was the result of ineffective assistance of counsel and that he was denied due process. The circuit court denied appellant's petition. On appeal, appellant argues that the circuit court erred in ruling that his petition was not timely filed.

The appeal is dismissed as it is clear from the record that the appeal is wholly without merit. This court has consistently held that an appeal of the denial of post-conviction relief will be dismissed where it is clear that the appeal is wholly without merit. 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).

A petition for writ of habeas corpus under Arkansas law must show that a commitment was invalid on its face or that the court trial lacked jurisdiction for a writ to issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990); Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 484 (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). The circuit court found that appellant's allegations in his petition were cognizable under Rule 37 and not through a habeas corpus action. The circuit court went on to find that a Rule 37 petition in this case would be untimely because more than six years had passed since the mandate issued. We agree with the circuit court's opinion. Appellant's allegations of error did not show that the commitment was facially invalid or that the trial court lacked jurisdiction. Thus, we cannot say that the circuit court's decision denying appellant's petition is clearly erroneous.

Appeal dismissed.