Dean E. L. Wedge v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR O5-565

NOT DESIGNATED FOR PUBLICATION

DEAN E.L.WEDGE

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 30, 2005

PRO SE MOTION FOR APPOINTMENT OF COUNSEL [CIRCUIT COURT OF PULASKI COUNTY, CR 99-2841, HONORABLE JOHN W. LANGSTON, JUDGE]

APPEAL DISMISSED; MOTION MOOT

PER CURIAM

In 1999, Dean E. L. Wedge pleaded guilty to rape and was sentenced to 180 months' imprisonment. On March 10, 2005, appellant, who was incarcerated in Lincoln County, filed a pro se petition for writ of habeas corpus in the trial court in Pulaski County. The petition was denied, and the record on appeal from that order has been lodged here.

Wedge now seeks by pro se motion the appointment of counsel. As we find that he could not be successful on appeal, the appeal is dismissed, and the motion is moot.

This court has consistently held that 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. 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).

As stated, appellant is in custody in Lincoln County. The petition filed in the trial court was not filed pursuant to Act 1780 of 2001, which provides that a writ of habeas corpus could issue based upon new scientific evidence proving a person actually innocent of the offense or offenses for which he or she was convicted. Ark. Code Ann. §§ 16-112-103(a)(1) and 16-112-201--207.

Petitions filed pursuant to Act 1780 may be filed and heard in the trial court. All other petitions for writs of habeas corpus should be filed in the county in which the petitioner is in custody.

As appellant's petition was not filed under the act, it should have been addressed to the Circuit Court of Lincoln County. The Circuit Court of Pulaski County did not have jurisdiction to release on a writ of habeas corpus not sought under Act 1780 a prisoner not in custody within that county. See Pardue, supra; Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Appeal dismissed; motion moot.