Maurice Sanders v. State of Arkansas

ARKANSAS SUPREME COURT

No. 05-206

NOT DESIGNATED FOR PUBLICATION

MAURICE SANDERS

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered April 7, 2005

PRO SE MOTION TO AMEND PETITION FILED IN CIRCUIT COURT [CIRCUIT COURT OF JACKSON COUNTY, CV 2004-210, HON. HAROLD ERWIN, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

Maurice Sanders, an inmate in the custody of the Arkansas Department of Correction, 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 leave to amend the habeas petition he filed in circuit court.

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, who stated in the habeas petition that he entered a plea of guilty, asserted in the petition that: he was entitled to have a jury determine the sentence to be imposed; he was denied the opportunity to "argue sentencing factors" and prove to a jury all facts related to the penalty to be imposed; and the sentence imposed exceeded the statutory maximum. Appellant did not append to the habeas petition a copy of the judgment of conviction being challenged or otherwise substantiate his claims. No affidavit or other evidence of probable cause to support the assertions was presented to the court.

Based on the bare allegations in the petition, the court held that appellant had waived the issues raised in the petition when he entered a plea of guilty. In light of the lack of substantiation for the allegations in the petition, it cannot be said that appellant established 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.