Alvin Rector v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-311

NOT DESIGNATED FOR PUBLICATION

ALVIN WILLIS RECTOR

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered February 9, 2006

PRO SE APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY, CR 99-1642, HON. WILLIAM A. STOREY, JUDGE

AFFIRMED

PER CURIAM

Alvin Willis Rector pleaded guilty to one count of rape and one count of first-degree sexual abuse and received an aggregate sentence of 180 months' imprisonment in the Arkansas Department of Correction. Mr. Rector filed a petition for writ of habeas corpus pursuant to Ark. Code Ann. § 16-112-201 (Supp. 2003) in the trial court, which was denied by an order entered December 2, 2004. Rector, proceeding pro se, now brings this appeal of that order.

Appellant Rector raises three points on appeal, although, as the State correctly notes, his argument is presented without distinction as to those points. Appellant's first and principal point is that the trial court erred in finding that there was no issue of identity because appellant had entered a guilty plea. Appellant's second point alleges he is entitled to an evidentiary hearing simply because the State did not respond to his petition. His third point is unclear, but would appear to be an assertion of a procedural bar similar to his second point.

We address appellant's procedural issues in his last two points first. While appellant appears to contend that he is entitled to some sort of default judgment due to the failure of the State to respond to his original petition, he provides no authority for his position. We are not aware of any requirement of a response from the State to a petition under Act 1780 of the 2001 Acts of Arkansas, or of any procedural rule that would require a response. Nor does appellant provide persuasive argument on this issue, to the extent his argument is discernable. This court will not consider an argument that presents neither citation to authority nor convincing argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002).

As to appellant's primary argument, his allegation that the trial court erred in determining that there was no issue of identity, the trial court was correct in determining that appellant failed to present a prima facie case that identity was an issue. Because appellant entered a guilty plea, there was no issue of identity, and no evidentiary hearing was required.

Act 1780 of the 2001 Acts of Arkansas 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 (Supp. 2003); 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 Sections16-112-201 to -203. 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. Section 16-112-205(a). While a claim of actual innocence must be included in a petition, it is clearly not the only requirement under Act 1780.

A petitioner seeking testing under Act 1780 must first present a prima facie case that identity was an issue at trial. Section 16-112-202(b)(1). Our holding in Graham v. State, 358 Ark. 296, ___S.W.3d ___ (2004) (per curiam)1 is controlling here, and we discussed the issues raised by appellant in that case. Appellant's admission of guilt settles all question as to whether identity was an issue; it was not. Appellant attempts to challenge the plea, alleging it was not voluntary. Yet, as we held in Graham, a challenge to the guilty plea was properly raised in a timely petition under Ark. R. Crim. P. 37.1, and Act 1780 does not provide a substitute for that remedy because appellant later wishes to attack the plea. Id. As appellant did not present a prima facie case that identity was an issue, the trial court did not err in denying the petition.

Affirmed.

1 Appellant asserts that Graham was not designated for publication under Ark. Sup. Ct. R. 5-2, however, he is mistaken. Graham was a published case.