Timothy May v. Larry Norris

ARKANSAS SUPREME COURT

No. 04-1286

NOT DESIGNATED FOR PUBLICATION

TIMOTHY MAY

Appellant

v.

LARRY NORRIS

Appellee

Opinion Delivered June 23, 2005

APPEAL FROM THE CIRCUIT COURT OF IZARD COUNTY, CIV 2004-93-4, HON. TIMOTHY M. WEAVER, JUDGE

AFFIRMED

PER CURIAM

Timothy May is incarcerated in the Arkansas Department of Correction and brings this appeal of an order denying his petition for writ of habeas corpus entered in Izard County Circuit Court on August 30, 2004. Appellant asserts three points of error.

In his first point, appellant urges us to apply the rule of reason as set forth in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) as applicable to a writ of error coram nobis, to the writ of habeas corpus. We decline to do so.

In his second point of error, appellant asserts the circuit court should have found the judgment was invalid on its face and that the trial court lacked jurisdiction. For his third point of error, appellant asserts that counsel at trial was ineffective, which resulted in an invalid plea of no contest. However, appellant has not set out his argument so as to differentiate between the points, and the issues, as he raises them, are intertwined. In any case, appellant has not shown that he plead facts to support the issuance of a writ.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). 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 asserts that the judgment is defective because of an error concerning the case number assigned to the charge. But, as the State notes in its brief, the information, plea statement, plea agreement and judgment and commitment order, all reference the case number CR 2000-225. There are some incorrect references in the transcript of the plea hearing, but appellant has not shown any defect in the judgment. Appellant asserts the trial court failed to follow Ark. R. Crim. P. 24.5. However, appellant signed the plea agreement, completed a plea statement, and, although he did not admit guilt, did agree to a no contest plea.

Appellant next asserts the trial court lost jurisdiction because his plea was invalid. Yet he has presented no facts that would support a determination that his plea was invalid. As a part of this argument, appellant contends trial counsel was ineffective, and that ineffectiveness led to an invalid plea.

A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and is not a substitute for direct appeal or postconviction relief. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). Ineffective assistance of counsel claims are not cognizable by habeas corpus. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). Appellant's claims of ineffective counsel could have been raised in a petition for postconviction relief under Ark. R. Crim. P. 37.1, and he may not now assert them in a habeas proceeding.

Since appellant has failed to show the judgment of conviction was invalid on its face or that the circuit court lacked jurisdiction, the circuit court appropriately determined the writ should not issue. We accordingly affirm the denial of appellant's petition by the court.

Affirmed.