Jimmie Dyas, a/k/a Jimmy Lee Dyas v. Larry Norris, Director, Arkansas Department of Correction

ARKANSAS SUPREME COURT

No. 05-101

NOT DESIGNATED FOR PUBLICATION

JIMMIE DYAS

aka Jimmy Lee Dyas

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 LINCOLN COUNTY, LCIV 2004-71-4, HON. LEON N. JAMISON, JUDGE]

APPEAL DISMISSED; PETITION MOOT

PER CURIAM

In April 1975, Jimmie Dyas, who is also known as Jimmy Lee Dyas, was found guilty by a jury of capital felony murder and sentenced to life imprisonment without parole. We affirmed. Dyas v. State, 260 Ark. 303, 539 S.W.2d 251 (1976).

Dyas subsequently filed in this court a petition for permission to proceed in the trial court with a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1 challenging the judgment. We granted Dyas leave to proceed in the trial court on certain allegations of ineffective assistance of counsel. Dyas v. State, CR 75-192 (Ark. December 20, 1976) (per curiam). After a hearing in the trial court, Dyas's Rule 37.1 petition was denied, and we affirmed the order. Dyas v. State, CR 78-61 (Ark. February 5, 1979).

In 2001, this court denied Dyas leave to proceed in circuit court with a petition for writ of error coram nobis. Dyas v. State, CR 00-1420 (Ark. October 18, 2001) (per curiam).

In 2003, we affirmed an order of the trial court that denied a petition for writ of habeascorpus pursuant to Act 1780 of 2001. Dyas v. State, CR 02-959 (Ark. September 18, 2003) (per curiam).

Also in 2003, Dyas filed in the trial court a petition to correct sentence pursuant to Ark. Code Ann. §16-90-111 (Supp. 1995). The appeal from the order was dismissed. Dyas v. State, CR 03-1452 (Ark. January 29, 2004) (per curiam order).

In 2004, Dyas 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. We need not consider the petition 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 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).

Although appellant was convicted of capital felony murder only, he asserted in the habeas petition that it was error for the State to charge him with multiple offenses. He also argued that: he was denied due process of law in that another person involved in the offense of which he was convicted was offered a plea bargain; he was innocent of the offense of which he was found guilty; and the trial judge should have recused. 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 is illegally detained.

Appeal dismissed; petition moot.