Benny Kilcrease v. State of Arkansas

ARKANSAS SUPREME COURT

No. 04-626

NOT DESIGNATED FOR PUBLICATION

BENNY KILCREASE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 16, 2005

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV 2003-928-5, HON. FRED D. DAVIS, III, JUDGE

AFFIRMED

PER CURIAM

Benny Kilcrease is incarcerated in the Arkansas Department of Correction serving a sentence of life imprisonment on a conviction in Miller County Circuit Court for rape by engaging in deviate sexual activity with his eight-year-old daughter.1 On December 11, 2003, Kilcrease filed a petition seeking a writ of habeas corpus in Jefferson County Circuit Court. The trial court denied the petition, and this appeal followed.

The State correctly notes in its brief that appellant has failed to provide an adequate abstract so as to comply with our briefing rules. See Ark. Sup. Ct. R. 4-2. Appellant has not abstracted or included in his addendum all those portions of the record pertinent to his arguments. However, we are not affording an opportunity to cure the deficiencies because it is clear from our review of appellant's claims that he could not prevail on appeal. 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. Booth v. State, 353 Ark. 119, 110 S.W.3d 759 (2003); 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). As the State notes, appellant's petition is not included in his addendum. It is the responsibility of the appellant to bring a record to this court sufficient for our review of the issues presented. See e.g., Jones v. Flowers, ___Ark.___, ___S..W.3d___(November 18, 2004). While we will not go to the record in search of prejudicial error, we do so now to affirm. See, Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Douthitt v. State, 326 Ark. 794, 935 S.W.2d 241 (1996).

Appellant's briefs on appeal merely restate and reassert the claims set forth in his petition. Appellant's petition alleged that a juror had been improperly seated, and that the Arkansas Rules of Evidence were improperly applied at his trial. The circuit court's order denying the petition for writ of habeas corpus indicated the claims raised by the petition were not sufficient to demonstrate that the commitment was invalid or that the trial court lacked jurisdiction, and the petitioner had failed to state a claim upon which habeas relief can issue. We agree.

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).

The claims in appellant's petition do not assert any invalidity of the commitment on its face or lack of jurisdiction. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). A writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. The remedy in such a case is direct appeal. Id. Appellant asserts the trial court lost jurisdiction by performing illegal acts, but fails to show that the alleged acts would be anything more than procedural errors during the trial. The statutes cited by appellant do not strictly prohibit a relative of the defendant from serving on a jury. Proper application of the rules of evidence could have been, and was, raised as an issue in appellant's direct appeal.

Further, the petition shows that appellant failed to meet his burden of showing, by affidavit or other evidence, probable cause to believe that he is illegally detained. Appellant did not append to the habeas petition a copy of the information or judgment of conviction being challenged, or otherwise substantiate his claims. No evidence of probable cause to support his assertion of illegal detention was presented to the court. Because the appellant has failed to raise a claim upon which a writ of habeas corpus could issue, we affirm the order of the trial court denying his petition.

Affirmed.

1 Appellant Kilcrease's conviction was affirmed in Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992). We note that appellant is apparently also sometimes known as Benny Lee Killcrease.