Ricardo James v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 04-1176

NOT DESIGNATED FOR PUBLICATION

RICARDO JAMES

Appellant

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Appellee

Opinion Delivered March 3, 2005

PRO SE PETITION FOR WRIT OF CERTIORARI [CIRCUIT COURT OF JEFFERSON COUNTY, CV 2004-11-4, HON. LEON N. JAMISON, JUDGE]

APPEAL DISMISSED; PETITION MOOT

PER CURIAM

In 2000, Ricardo James entered a plea of guilty to rape in the Circuit Court of Miller County and was sentenced to 240 months' imprisonment. In 2004, James 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 a writ of certiorari to supplement the appeal record with evidence to bolster the claims raised in the petition for writ of habeas corpus.

The petition for writ of certiorari is clearly an attempt to add material to the record which was not before the circuit court when it made its decision on the petition for writ of habeas corpus. As such, it is not well founded. More importantly, however, it is apparent that appellant could not prevail in this appeal if it were permitted to go forward because he failed to demonstrate a ground for the writ. Accordingly, the appeal is dismissed. The petition for writ of certiorari is moot.

This court has consistently held that an appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, 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) (per curiam); 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).

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) (per curiam). 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).

Appellant asserted in the habeas petition that he was innocent of the offense, that the evidence was insufficient to sustain the judgment, and that the trial court lacked jurisdiction because the offense was committed in Texas. The claims of innocence and insufficient evidence in themselves were not sufficient to establish that the commitment was invalid on its face or that the trial court was without jurisdiction.

While a claim that the trial court lacked jurisdiction can warrant issuance of the writ, the burden is on the petitioner to make the requisite showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Appellant in the instant case offered nothing to show that the offense occurred in Texas except for a police report which contained a summary of the contradictory statements of different persons that indicated that the offense had taken place in Texas but also in Miller County, Arkansas. A transcript of the guilty plea hearing at which the evidence to support the charge was presented to the court was not included in the record, and there was nothing to definitively substantiate the allegation that the court lacked jurisdiction. It being apparent from the record that appellant failed to establish probable cause to question the court's jurisdiction, there is no reason to proceed with the appeal.

Appeal dismissed; petition moot.