John Troub v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 04-1293

JOHN TROUB

Appellant

v.

LARRY NORRIS, DIRECTOR

ARKANSAS DEPARTMENT OF CORRECTION

Appellee

Opinion Delivered May 19, 2005

PRO SE MOTION TO FILE BELATED RELY BRIEF [CIRCUIT COURT OF IZARD COUNTY, NO. CV 2004-67-4, HON. TIM WEAVER, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

In 2000, Appellant John Troub entered a plea of nolo contendere to one count of rape, and was sentenced to a term of 144 months' imprisonment. Appellant did not challenge the validity of the plea pursuant to Ark. R. Crim. P. 37. He instead filed a petition for writ of habeas corpus, which was denied. The record on appeal from that order has been lodged here.

Before us now is appellant's motion to file a belated reply brief. Because we find that appellant cannot prevail on appeal, the motion is moot. 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. 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).

The burden is on the petitioner in a habeas corpus proceeding to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, 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). Appellant argued in his petition that the circuit court did not establish a factual basis for his plea and, therefore, acted without jurisdiction, and issued a judgment that was invalid on its face.

According to appellant, because the court accepted an invalid plea, it lost jurisdiction to go forward with sentencing.

A writ of habeas corpus cannot serve as a substitute for postconviction relief. Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995). Appellant's claim regarding the validity of his plea should have been raised in a Rule 37 petition, and is not sufficient to show that the commitment was facially invalid or that the trial court lacked jurisdiction. Thus, the court did not err in declining to issue a writ of habeas corpus.

Appeal dismissed; motion moot.

Imber, J., not participating.