Roderick A. White v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 05-514

NOT DESIGNATED FOR PUBLICATION

RODERICK A. WHITE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 30, 2005

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF HOWARD COUNTY, CR 2001-45, HON. CHARLES A. YEARGAN, JUDGE

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

Roderick A. White was convicted of aggravated robbery and sentenced to 480 months' imprisonment. The Arkansas Court of Appeals affirmed. White v. State, CA CR 02-110 (Ark. App. Jan. 29, 2003). White filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 and a motion for the addition of newly discovered evidence to be included with his petition. The trial court denied appellant's petition and motion. This court affirmed in an unpublished opinion. White v. State, CR 03-750 (Ark. Feb. 10, 2005). White then filed a petition for writ of habeas corpus in Howard County Circuit Court, which was denied by order entered April 11, 2005. White lodged an appeal of that order in this court, and has now filed a motion for appointment of counsel. We need not consider the motion, as it is apparent that appellant could not prevail in this appeal if permitted to go forward; he has failed to demonstrate a ground for the writ. We dismiss the appeal and the motion is therefore 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).

A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575, 577, 873 S.W.2d 524, 525 (1994). 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).

As the circuit court indicated in its order, the claims in appellant's petition do not assert any invalidity of the commitment on its face or lack of jurisdiction. A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case, and is not a substitute for direct appeal or postconviction relief. Meny v. Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000). 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. Id. Appellant raised claims as to ineffective assistance of counsel, irregularities in the Ark. R. Crim. P. 37.1 proceeding and at trial, and newly discovered evidence. None of those claims are cognizable in a habeas corpus proceeding. The circuit court correctly found appellant did not state a basis in his petition to support issuance of the writ. It is clear on the record that appellant will not prevail, and we accordingly dismiss the appeal. The motion is moot.

Appeal dismissed; motion moot.