Michael Criswell v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

DECEMBER 5, 2002

MICHAEL CRISWELL

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-877

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF PULASKI COUNTY, NO. CR 98-735, JOHN PLEGGE, JUDGE]

APPEAL DISMISSED; MOTION MOOT

In 1988, Michael Criswell entered a plea of guilty to aggravated robbery and was sentenced as a habitual offender to 360 months' imprisonment. In 2002, Criswell filed in the trial court a petition for writ of habeas corpus, contending among other claims that he was actually innocent of the offense. The petition was denied, and the record on appeal from that order has been lodged here. Appellant Criswell now seeks by pro se motion an extension of time to file the appellant's brief.

As we find that appellant could not be successful on appeal, the appeal dismissed. The motion for extension of time is moot. 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).

Arkansas Code Annotated §16-112-103(a)(2) (Repl. 2001) provides that a person in custody who contends that he is actually innocent of the offense of which he was convicted may file a petition for writ of habeas corpus in the trial court in accordance with Ark. Code Ann. §16-112-201, et seq (2001). Arkansas Code Annotated §16-112-201, et seq, permits the petitioner to present scientific evidence in some circumstances to support the claim that he was actually innocent of the offense. Appellant did not contend in the petition for writ of habeas corpus that there was scientific evidence to support his claim of actual innocence. Instead, he contended that: (1) a factual basis was not established for each element of the offense when he entered his plea of guilty; (2) he was not afforded effective assistance of counsel in the plea proceeding; and (3) he was not informed that he would be required to serve seventy percent of the sentence imposed. The allegations did not fit within the purview of Ark. Code Ann. §16-112-201, et seq; accordingly, appellant did not state a claim on which the writ could issue.

Motion denied and appeal dismissed.