Andrew Shaw v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-236

NOT DESIGNATED FOR PUBLICATION

ANDREW SHAW

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 2, 2006

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, CR88-116, HON. GARY ISBELL, JUDGE

AFFIRMED

PER CURIAM

A jury found Andrew Shaw guilty of attempted capital murder, felony fleeing, two counts of possession of a firearm by a felon, theft of property, unauthorized use of a vehicle and misdemeanor fleeing. He was sentenced to an aggregate term of seventy-three years' imprisonment. We affirmed. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). After the judgment of conviction was affirmed, Shaw sought leave from this court to proceed in the trial court with a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1.1 We denied the petition. Shaw v. State, CR 89-4 (Ark. February 17, 1992) (per curiam).

In 2004, Shaw filed in the trial court a pro se petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified at Ark. Code Ann. § 16-112-201-207 (Supp. 2003). The circuit court denied the petition, and Shaw brings this appeal. We affirm the trial court's order.

The crimes with which appellant were charged stemmed from a two-day pursuit of appellant by local officials. In his habeas petition, appellant focused substantially upon a single incident related to the charge of attempted capital murder. In that incident, a law enforcement officer pulled over appellant and his girlfriend in his vehicle, a Camaro, for a broken tail light and non-visible license plate. As the officer approached appellant's car, appellant fired a sawed-off shotgun at the officer, causing serious injuries. As a result of this incident, appellant was charged and convicted of attempted capital murder. He maintained that scientific testing of certain items2 would prove that he was "factually innocent of the crime of attempted capital murder" and that the officer shot himself to cover up improper actions in pursuit of appellant.

Act 1780 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. See Ark. Code Ann. §§ 16-112-103(a)(1) (Supp. 2003) and 16-112-201-207; see also Echols v. State, 350 Ark. 42, 44, 84 S.W.3d 424, 426 (2002) (per curiam). A number of predicate requirements must be met under Act 1780 before a circuit court can order that testing be done. See Sections 16-112-201 to -203.

A petitioner seeking testing under Act 1780 must present a prima facie case that identity was an issue at trial. Ark. Code Ann. § 16-112-202(b)(1). Graham v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004) (per curiam). Appellant argues on appeal that merely entering a plea of "notguilty" at his arraignment sufficiently and permanently raised the issue of identity3 throughout the entire matter, including the jury trial. We disagree and find that appellant failed to make a prima facie case under the statute.

On direct appeal, appellant raised no issues regarding identity, and we noted that "appellant does not contest any part of the state's proof of his guilt on the charge[.]" Shaw, 299 Ark. at 482, 773 S.W.2d at 831. In its order denying the writ, the trial court noted that the issue of identity had been settled since appellant's confession, admitted without objection at trial, placed appellant at the scene of the incident, driving the Camaro that he owned and shooting the shotgun he owned. Also, the troopers found appellant's fingerprints in his car which were admitted into evidence without objection. Moreover, in the petition for writ of habeas corpus, appellant admitted that he was in the Camaro and that he fired the shotgun.

Appellant failed to make a prima facie showing that identity was an issue at trial by virtue of the evidence adduced at trial establishing identity. Orndorf v. State, 355 Ark. 261, ___ S.W.3d ___ (2003) (per curiam). In light of appellant's failure to place his identity at issue before the trial court, there is no basis to find that the trial court erred when it denied his petition for scientific testing.

Appellant additionally argues that the trial court improperly failed to hold a hearing to determine whether DNA testing should be conducted. A circuit court need not hold a hearing if the petition and the files and records show that a petitioner is not entitled to relief. Ark. Code Ann. § 16-112-205(a); Graham, supra. As appellant's identity was not in question, the trial court did not err when it did not hold an evidentiary hearing. Further, the trial court correctly pointed out that none of the testing requested by appellant could have proved his claim that the officer shot himself.

Appellant has raised other points on appeal involving ineffective assistance of counsel and improper sentencing. With respect to the sentencing issues, 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. Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam); Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). As to appellant's claim of ineffective assistance of counsel, a petition for writ of habeas corpus cannot substitute for a petition for postconviction relief. Meny, supra.

Affirmed.

1 Prior to July 1, 1989, a petitioner whose judgment of conviction had been affirmed on appeal was required to petition this court for relief under Criminal Procedure Rule 37.1 and gain leave from this court to proceed under the rule in the circuit court before filing a petition there. The rule was revised effective January 1, 1991, to allow all petitioners to file for postconviction relief directly in the trial court without having first garnered permission from this court.

2 Appellant specifically requested that fingerprints/palm prints, hair, blood and powder burns be tested for DNA. The trial court noted that the record made no mention of hair as evidence and that no bodily fluids were admitted into evidence.

3 Appellant's "identity" argument actually focuses on proving the "identity" of the officer as having shot himself, rather than claiming mistaken identity of appellant at trial.