Onis M. Kelley v. State of Arkansas

Annotate this Case
cr04-233

ARKANSAS SUPREME COURT

No. CR 04-233

NOT DESIGNATED FOR PUBLICATION

ONIS M. KELLEY

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 16, 2005

APPEAL FROM THE CIRCUIT COURT OF ASHLEY COUNTY, NO. CR 99-169-1, HONORABLE SAM POPE, JUDGE

REVERSED AND REMANDED

PER CURIAM

Appellant was convicted of rape and sentenced to 120 months' imprisonment. The Arkansas Court of Appeals affirmed. Kelley v. State, CA CR 00-1036 (Ark. App. June 6, 2001). Appellant subsequently filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, now codified as Ark. Code Ann. § 16-112-201- -207 (Supp. 2003). Act 1780 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. See Ark. Code Ann. §§ 16-112-103(a)(1) and 16-112-201--207; see also Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam ). The trial court denied the petition, and from that order comes this appeal. In denying relief, the trial court erroneously treated appellant's petition as a habeas petition which was not filed pursuant to Act 1780. Accordingly, the court concluded that appellant's petition was improperly filed in the trial court, stating that the proper venue for the petition was the county in which appellant was incarcerated.

Petitions filed pursuant to Act 1780 may be filed and heard in the trial court. All other petitions for writs of habeas corpus should be filed in the county in which the petitioner is in custody. Appellant has requested that DNA testing be done on pubic hairs and on samples collected in the rape kit, as such testing will exonerate him. Such claims are cognizable under Act 1780.

It appears that in addition to appealing the denial of his habeas petition, appellant also filed a response to the State's supplemental response in an attempt to clarify that he was in fact raising issues under Act 1780. On February 5, 2004, the trial court issued an amended order denying appellant's habeas petition. However, this order was entered subsequent to the filing of appellant's notice of appeal. Therefore, the amended order is not on appeal to this court.

Because appellant's petition was properly filed in the trial court, we reverse and remand with directions to the court to treat appellant's petition as one pursuant to Act 1780 and enter a ruling on the merits.

Reversed and remanded.

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