Larry Rayford v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 04-1171

NOT DESIGNATED FOR PUBLICATION

LARRY RAYFORD

Appellant

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Appellee

Opinion Delivered October 13, 2005

PRO SE PETITION FOR REHEARING [APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV 2004-422-2, HON. JODI MARIE RAINES, JUDGE]

PETITION FOR REHEARING DENIED

PER CURIAM

Larry Rayford was convicted of capital murder and sentenced to life without parole. Rayford appealed and this court affirmed. Rayford v. State, 326 Ark. 656, 934 S.W.2d 496 (1996). Rayford filed a petition pursuant to Ark. R. Crim. P. 37.1, which was denied. We affirmed in an unpublished decision. Rayford v. State, CR 98-1322 (Ark. May 18, 2000) (per curiam). Rayford next petitioned for writ of error coram nobis, which was denied in an unpublished decision. Rayford v. State, CR 96-428 (Ark. March 4, 2004) (per curiam). Rayford, now incarcerated in the Arkansas Department of Correction, filed a petition for writ of habeas corpus in Jefferson County Circuit Court, which was denied. Rayford appealed that decision, raising a jurisdictional issue asserting the murder actually occurred in Ashley County, not in Drew County where he was tried. We affirmed the denial of the petition in another unpublished opinion. Rayford v. State, CR 04-1171 (Ark. June 23, 2005) (per curiam). Appellant Rayford now brings this petition for rehearing on that decision.

Rule 2-3(g) of the Rules of the Arkansas Supreme Court provides that a petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain and not to repeat arguments already considered and rejected by this court. The petition must cite to facts the appellant contends were overlooked and provide references to the abstract or addendum as required by Ark. Sup. Ct. R. 2-3(h).

Appellant argues in his petition that he should not be prevented from asserting his jurisdictional claim, because his attorney did not raise the issue on appeal. He urges us to raise the issue on our own, now, because this is a life sentence. He asserts that the question should have been addressed pursuant to Ark. Sup. Ct. R. 4-3(h).

This court did review the record on direct appeal pursuant to Ark. Sup. Ct. R. 4-3(h), and found no prejudicial error warranting reversal as a result of the adverse ruling on the question of venue. Rayford, 326 Ark. at 660, 934 S.W.2d at 498. The issue has been addressed and appellant's conviction and sentence affirmed. Unlike an issue of subject matter jurisdiction, the question here is one of territorial jurisdiction subject to waiver. Ashley County and Drew County are both within the same judicial district. Local jurisdiction may be waived within the territorial boundaries of the judicial district. Davis v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994). Appellant did challenge jurisdiction in Ashley County at trial by filing a petition for change of venue. We did not find that adverse ruling was prejudicial error in our review, and it is appropriate that appellant is now deemed to have waived this question of venue.

Appellant provides no citation to authority that we should raise a question of territorial jurisdiction, not subject matter jurisdiction, on our own initiative and in spite of a previous opportunity for appellant to have done so. Nor are we persuaded by his argument. This court will not consider an argument that presents no citation to authority or convincing argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Regardless of the severity of appellant's sentence, this is not a question that may be addressed in a writ of habeas corpus. The procedures for direct appeal and postconviction proceedings adequately insure a defendant is not prejudiced by his attorney's decision on a question of local jurisdiction such as this.

As discussed in our opinion, this is an issue that should be addressed on direct appeal or in a postconviction proceeding and is not a proper subject for habeas relief. The issue was addressed, and was addressed as appropriate for a sentence of life without parole. We find no basis for rehearing, and accordingly deny appellant's petition.

Petition for rehearing denied.

Dickey, J., not participating.