Willie Reynolds v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JULY 5, 2002

WILLIE REYNOLDS

Appellant

v.

STATE OF ARKANSAS

Appellee

02-418

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF LINCOLN COUNTY, NO. LCIV 2001-102-3, HON. FRED DAVIS, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1992, Willie Reynolds was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. We affirmed. Reynolds v. State, 310 Ark. 688, 840 S.W.2d 795 (1992). Reynolds subsequently filed in federal court a petition for writ of habeas corpus which resulted in that court's issuing a conditional writ on the ground that Reynolds should have been afforded a competency hearing in the trial court. Pursuant to the conditional writ, the trial court ordered a mental evaluation in 1997, and based on that evaluation, Reynolds was found unfit to proceed. After treatment at the Arkansas State Hospital, the court was advised that Reynolds had improved and was fit to proceed. The court held a second competency hearing, found Reynolds competent, and scheduled a new trial for him to be held on October 7, 1998. Before the trial was held, however, Reynolds pleaded guilty to a reduced charge of murder in the first degree and was sentenced to thirty years' imprisonment. He did not challenge the judgment or sentence under

Rule 37, our postconviction rule.

.

In 2001, Reynolds 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 Reynolds now asks that counsel be appointed to represent him.

The motion for appointment of counsel is moot. The appeal is 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).

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) he was under a declaration of insanity from a California court when he committed the murder, and the sanity hearing (presumably the second hearing in which he was found competent) was inadequate and unjust; (2) he did not receive effective assistance of counsel at trial; and (3) the State lacked jurisdiction of the subject matter or his person at the proceedings in State court.

The issues raised by appellant with respect to his competency were addressed in the trial court, and he was found to be fit to proceed. There was no ground in the petition for writ of habeas corpus filed in 2001 to warrant revisiting the issue.

As to appellant's claim that the trial court lacked jurisdiction of the subject matter or his person, appellant was charged in Pulaski County with an offense committed in that county and tried there. The conclusory claim that the trial court lacked jurisdiction did not demonstrate that the court's jurisdiction was not in Pulaski County.

The allegations of counsel's inadequacy were also insufficient to establish that the trial court was without jurisdiction or that the commitment was invalid on its face. It can be concluded by examining the face of the habeas petition, that 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.

Motion moot; appeal dismissed.