Michael Ramaker v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-256

NOT DESIGNATED FOR PUBLICATION

MICHAEL RAMAKER

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 2, 2005

APPEAL FROM THE CIRCUIT COURT OF BENTON COUNTY, NO. CR 98-557-2, HONORABLE DAVID S. CLINGER, JUDGE

AFFIRMED

PER CURIAM

Appellant was convicted of first-degree murder and sentenced to thirty-five years' imprisonment for the shooting death of his girlfriend, Ann Swee. We affirmed. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Appellant subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37, which was denied. No appeal was perfected.

On September 16, 2003, appellant filed a petition for writ of habeas corpus pursuant to Act 1780 of 2001. On November 17, 2003, he filed a petition for writ of error coram nobis, which was "incorporated" with his petition for writ of habeas corpus. In one order, the trial court denied both petitions. Regarding appellant's habeas petition, the trial court found that appellant had failed to state a cause of action. The court specifically noted that appellant had failed to show that identity was an issue at trial, especially since he had conceded that he pointed a 12-gauge shotgun in the direction of Swee, and it went off, killing her. The court also stated that appellant did not allege that any type of scientific testing existed at the time he filed his habeas petition that was not available at the time of trial. As for appellant's petition for writ of error coram nobis, the trial court ruled that the issues raised in the petition were decided on direct appeal and that neither of the alleged errors warranted such an "extraordinary remedy." From that order comes this appeal.

When a writ of error coram nobis is sought after the judgment has been affirmed on appeal, a trial court may consider the petition only after this court grants permission by reinvesting the trial court with jurisdiction. E.g., Echols v. State, 354 Ark. 414, 418, 125 S.W.3d 153, 156 (2003). Appellant has not received such permission; therefore, because the petition was filed after his conviction had been affirmed on appeal, the trial court was without jurisdiction to consider it. See, e.g. Thomas v. State, 345 Ark. 236, 238, 45 S.W.3d 818, 819 (2001). The trial court's denial of coram nobis relief should therefore be affirmed. Although appellant's petitions overlap regarding the admission of the shotgun into evidence, we will only address appellant's claims with regard to his habeas petition pursuant to Act 1780.

We note that appellant has failed to include in his brief, a proper abstract of his trial. Even so, we are not ordering rebriefing pursuant to Ark. Sup. Ct. R. 4-2(b)(3) because it is clear from our review that appellant could not prevail on appeal. 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. Booth v. State, 353 Ark. 119, 120, 110 S.W.3d 759, 760 (2003) (per curiam).

Act 1780 was passed by the General Assembly in response to nation-wide concerns that innocent persons were being imprisoned and even executed for crimes that they did not commit. Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). The act provides that a writ of habeas corpus could issue based upon new scientific evidence proving a person is actually innocent of the offense or offenses for which he or she was convicted. Ark. Code Ann. §§ 16-112-103(a)(1) and 16-12-201 to -207.

Under Act 1780, the petitioner must claim that (1) the scientific evidence was not available at trial or (2) the scientific predicate for the claim could not have been previously discovered through due diligence, and the facts when viewed in light of the evidence as a whole, establish by clear and convincing evidence that no reasonable fact-finder would find the petitioner guilty of the underlying offense. Ark. Code Ann. § 16-112-201(a). Appellant has a duty to present a prima facie case that (1) identity was an issue in the trial and (2) the chain of custody was not broken. Ark. Code Ann. § 16-112-202(b). A trial court shall order testing if a prima facie case is established, the testing has the scientific potential to produce new noncumulative evidence materially relevant to the defendant's claim of actual innocence, and the testing employs a scientific method that is generally accepted within the relevant scientific community. Ark. Code Ann. § 16-112-202(c).

Appellant first claims that the trial court abused its discretion by ordering the repair of the 12-gauge shotgun that killed Swee. Appellant raised this same issue on direct appeal, and this court held that the trial court may have abused its discretion by ordering the repair; however, such error was harmless, as appellant was unable to show prejudice. Ramaker, 345 Ark. at 233, 46 S.W.3d at 525. In the instant appeal, appellant brings his habeas claim pursuant to Act 1780; however, it is unclear exactly what he is arguing. His argument seems to be simply that his actual innocence can be proven by the testimony of various witnesses from his trial.

We agree with the trial court that appellant's claim does not fall within the ambit of Act 1780, as it is unrelated to any scientific testing of evidence to demonstrate appellant's actual innocence. 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). Accordingly, we find no merit, and affirm.

He next claims that the trial court erred by admitting the shotgun into evidence because it had been cleaned. On direct appeal, appellant claimed that the trial court erred in admitting the gun because the cleaning removed soot and other dirt that caused the malfunction that he alleged caused Swee's death. Ramaker, 345 Ark. at 231, 46 S.W.3d at 523. This court held that appellant's claim was barred because although he made a chain-of-custody objection at trial, he later stated that he had "no objection" to the evidence. Id. at 232, 46 S.W.3d at 524. According to this court, once he made that statement, it was as though he had never objected, and the argument was therefore barred. Id. Again, this claim is not cognizable under Act 1780 as it is unrelated to any scientific testing to prove appellant's actual innocence. Moreover, a habeas petition does not afford appellant an opportunity to retry his case. Meny, supra. The denial of relief is affirmed.

Appellant's next claim is that he was denied the effective assistance of counsel and that he did not have access to counsel. As stated, appellant did not perfect an appeal of the denial of Rule 37 relief. Appellant cannot now use his habeas petition to advance claims that he failed to preserve for appeal. A habeas petition is not a substitute for a petition for postconviction relief pursuant to Rule 37. Cothrine v. State, 322 Ark. 112, 114, 907 S.W.2d 134, 135 (1995) (per curiam). Accordingly, we affirm the ruling below.

Appellant's final claim is that he was denied access to records. He specifically argues that a prison official signed the return receipt for the order denying Rule 37 relief, and never gave him the order. According to appellant, such actions precluded this court from considering claims on appeal. Again, this claim does not meet the requirements to obtain relief under Act 1780. Therefore, we affirm the trial court's denial of relief.

Affirmed.