Artic Henderson v. State of Arkansas

Annotate this Case
04-521

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

ARTIC HENDERSON

Appellant

v.

STATE OF ARKANSAS

Appellee

04-521

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF JEFFERSON COUNTY, NO. CV 2003-661-5, HON. FRED DAVIS, JUDGE]

APPEAL DISMISSED; MOTION MOOT

Per Curiam

In 1997, Artic Henderson entered a plea of guilty to murder in the first degree and was sentenced to forty years' imprisonment. In 2003, Henderson filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and the record has been lodged here on appeal. Appellant now seeks an extension of time to file the appellant's brief.

The appeal is dismissed as it is clear that appellant could not prevail on appeal. 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 cannot succeed on appeal. Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996) (per curiam); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994) (per curiam); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991) (per curiam);

Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990) (per curiam); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) (per curiam).

Appellant argued that his plea of guilty was not knowingly, voluntarily, and intelligently entered and that he was denied effective assistance of counsel in the plea proceeding. The claims could, and should, have been raised under our postconviction rule, Criminal Procedure Rule 37.1. A petition for writ of habeas corpus is not a substitute for a timely petition under the rule. Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam).

Unless a petitioner can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, 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 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), see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). The allegations raised by appellant in the habeas petition were not sufficient to demonstrate that the commitment was invalid or that the court lacked jurisdiction.

Appeal dismissed; motion moot.

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