Randall Thomas McArty v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 03-710

NOT DESIGNATED FOR PUBLICATION

RANDALL THOMAS McARTY Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered October 28, 2004

PRO SE MOTION FOR BELATED APPEAL OF ORDER [CIRCUIT COURT OF CLARK COUNTY, NO. CR 92-111]

MOTION DENIED

PER CURIAM

In 1993, Randall Thomas McArty was found guilty of murder in the first degree in the shooting death of Teresa Chamberlain. A sentence of life imprisonment was imposed. We affirmed. McArty v. State, 316 Ark. 35, 871 S.W.2d 346 (1994).

In 1998, McArty petitioned this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition was denied. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

In 2003, McArty again asked this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis. In the petition it was alleged that the State withheld exculpatory evidence. The petition was denied. McArty v. State, CR 03-1071 (Ark. October 16, 2003). (Per curiam).

Earlier in 2003, before petitioner McArty filed the second petition for leave to proceed with an error coram nobis petition here, petitioner filed in the trial court a motion for new trial in which he invoked Act 1780 of 2001. The act amended Arkansas's state habeas corpus statute to provide that a writ could issue to any person "who has alleged actual innocence of the offense or offenses for which the person was convicted....in accordance with §16-112-201 et seq." Ark. Code Ann. §16-112-103(a)(1). The motion was denied, and petitioner tendered the record on appeal to this court. Our clerk correctly declined to lodge it because there was no notice of appeal. Now before us is petitioner's motion asking to be permitted to proceed with a belated appeal pursuant to Rule 2(a)(4) of the Rules of Appellate Procedure-Criminal.

We need not consider petitioner's reasons for having failed to file a notice of appeal because it is clear that he could not prevail on appeal even if the motion for belated were granted. Petitioner's grounds for relief in the motion pursuant to Act 1780 filed in the trial court were identical to those raised in his second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis filed in this court. We found that those allegations were not sufficient to show that any exculpatory evidence had been withheld from the defense when petitioner was tried in 1993.

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). Here, petitioner has already presented his claims that exculpatory evidence was wrongfully withheld and failed to prevail. There is no cause to revisit the same issue in another proceeding.

Motion denied.