Ronald Robinson v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 31, 2002

RONALD ROBINSON

Appellant

v.

LARRY NORRIS, DIRECTOR,

ARKANSAS DEPARTMENT

OF CORRECTION

Appellee

01-1219

PRO SE MOTION TO SUPPLEMENT RECORD AND ABSTRACT [CIRCUIT COURT OF LINCOLN COUNTY, NO. CIV 01-57-2-3, HON. FRED DAVIS, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 2000, Ronald Robinson was found guilty by a jury of murder in the first degree and sentenced to 120 months' imprisonment. The court of appeals affirmed. Robinson v. State, CACR 00-383 (November 1, 2000). Robinson subsequently filed in the trial court an untimely petition for postconviction relief pursuant to Criminal Procedure Rule 37 which was denied. He appealed to this court, and the appeal was dismissed on the ground that appellant was procedurally barred from proceeding on an untimely petition. Robinson v. State, CR 01-217 (Ark. April 5, 2001) (per curiam).

Robinson then 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 Robinson now seeks leave to supplement the record and the abstract in the appellant's brief. We declare the motion moot and dismiss the appeal as it is

evident that appellant could not prevail on appeal.

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 his attorney at trial filed a motion for continuance without his consent; thus the period of the continuance should not have been considered an excludable period for the purposes of determining whether he was afforded a speedy trial. As the claim did not demonstrate that the court was without jurisdiction or that the commitment was invalid on its face, 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.

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 moot; appeal dismissed.