Robert R. Heffernan v. State of Arkansas

Annotate this Case
cr02-239

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JUNE 13, 2002

ROBERT R. HEFFERNAN

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-239

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF SALINE COUNTY, NO. CR 80-41-1, HON. GARY M. ARNOLD, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1981, Robert R. Heffernan was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. The conviction arose out of the abduction, rape, and murder of a fourteen-year old girl in 1980. We affirmed. Heffernan v. State, 278 Ark. 325, 645 S.W.2d 666 (1983).

On November 6, 2001, Heffernan filed in the trial court a petition for writ of habeas corpus pursuant to Act 1780 of the 2001 Acts of Arkansas, claiming that the State had conducted DNA testing before trial that exonerated him, but the results of the testing was not introduced into evidence at trial. He further argued that the evidence adduced at trial was insufficient to sustain the jury's finding that he had committed kidnapping and murder. The court denied the petition, and Heffernan has lodged an appeal from that order here. He now asks that counsel be appointed to represent him on appeal.

We declare the motion moot and dismiss the appeal because it was clear from the face of the petition that appellant was not entitled to habeas corpus relief pursuant to the statute. 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).

Act 1780, codified as Ark. Code Ann. §16-112-201(a) (2001) provides that:

Except when direct appeal is available, a person convicted of a

crime may commence a proceeding to secure relief by filing a

petition in the court in which the conviction was entered to

vacate and set aside the judgment and to discharge the petitioner

or resentence the petitioner or grant a new trial or correct the

sentence of make other disposition as may be appropriate, if

the person claims that:

(1) Scientific evidence not available at trial establishes the

petitioner's actual innocence; or

(2) The scientific predicate for the claim could not have been

previously discovered through the exercise of due diligence and

the facts underlying the claim, if proven and viewed in the

light of the evidence as a whole, would be sufficient to establish

by clear and convincing evidence that no reasonable fact-finder

would find the petitioner guilty of the underlying offense.

Here, appellant raised only one allegation within the purview of the statute, i.e. that he could have been exonerated by DNA testing, and he concedes that the scientific evidence was available at trial. As the evidence was available at the time of trial, Ark. Code Ann. §16-112-201(a)(1) precludes the same evidence from being the basis for issuance of a writ of habeas corpusnow.

Moreover, if counsel for appellant Heffernan failed to obtain the test results which were available at the time of trial, then appellant's remedy was a claim of ineffective assistance of counsel raised in a timely petition for postconviction relief pursuant to Criminal Procedure Rule 37 filed after he was convicted. Appellant did not act with due diligence to raise the issue and is thus procedurally barred from raising it now under by virtue of Ark. Code Ann. §16-112-201(a)(2).

Motion moot; appeal dismissed.

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