Paul E. Mashburn v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 05-23

NOT DESIGNATED FOR PUBLICATION

PAUL E. MASHBURN

Appellant

v.

LARRY NORRIS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION

Appellee

Opinion Delivered March 31, 2005

PRO SE MOTION FOR EXTENSION OF TIME TO FILE APPELLANT'S BRIEF [CIRCUIT COURT OF LINCOLN COUNTY, LCIV 2004-68-1, HON. BERLIN C. JONES, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

Paul E. Mashburn entered a plea of guilty in 2001 to failure to register as a sex offender. He was sentenced to serve two years' imprisonment with imposition of an additional four years' imprisonment suspended.

In 2003, the trial court revoked the suspended portion of the term of imprisonment because Mashburn had failed to comply with the conditions of the suspended sentence. He was sentenced to serve thirty-six months' imprisonment. The court of appeals affirmed the revocation order. Mashburn v. State, ___Ark. App.___, ___S.W.3d ___(June 23, 2004).

In 2004, Mashburn 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 an extension of time to file his brief.

We need not consider the motion as 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 motion 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: (1) the police conducted an unconstitutional warrantless search and the evidence was insufficient to sustain the judgment; (2) he was arrested without probable cause and without a proper warrant; (3) the State withheld exculpatory evidence in that it did not disclose a particular statute to the defense which would have constituted an affirmative defense; and (4) he was not afforded effective assistance of counsel. None of the claims was sufficient to establish that the commitment was invalid on its face or that the trial court was without jurisdiction. Clearly, appellant failed to meet his burden of showing by affidavit or other evidence of probable cause to believe that he was illegally detained.

Appeal dismissed; motion moot.