John W. Sellers a/k/a John W. Sellars v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 89-84

NOT DESIGNATED FOR PUBLICATION

JOHN W. SELLERS

a/k/a John W. Sellars

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered October 27, 2005

PRO SE PETITION TO PROCEED IN TRIAL COURT PURSUANT TO CRIMINAL PROCEDURE RULE 37.1 [CIRCUIT COURT OF BRADLEY, NO. CR 86-55-1]

PETITION DENIED

PER CURIAM

John W. Sellers, who is also known as John W. Sellars, was found guilty by a jury of capital-felony murder and sentenced to life imprisonment without parole. We reversed the judgment and remanded the matter for retrial. Sellers v. State, 295 Ark. 489, 749 S.W.2d 669 (1988).

Sellers was again found guilty on retrial in 1988, and we affirmed the judgment. Sellers v. State, 300 Ark. 280, 778 S.W.2d 603 (1989).

Sellers now seeks leave from this court to proceed in the trial court with a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1.1 The petition is properly filed here because the rule, as it applies to petitioners with judgments entered before July 1, 1989, which have been affirmed on appeal, requires the petitioner to obtain leave from this court before filing apostconviction petition in the trial court.2

Rule 37.2, as it applies to petitioner, provides that a petition under the rule is untimely if not filed within three years of the date of commitment, unless the petitioner states some ground for relief which, if found meritorious, would render the judgment of conviction absolutely void, i.e. a complete nullity. Travis v. State, 286 Ark. 26, 688 S.W.2d 935 (1985); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied 452 U.S. 973 (1981). Trial error, even error of constitutional dimension, is not sufficient to warrant granting relief under Rule 37.2 if the issue was raised, or could have been raised, at trial and on the record on appeal. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989). A claim of ineffective assistance of counsel does not entitle the petitioner to postconviction relief if not of such magnitude that counsel's conduct rendered the judgment a complete nullity. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982). The burden is on the petitioner to establish that there is a ground sufficient to void the judgment of conviction. Travis, supra.

Petitioner asserts that he is entitled to a new trial on the grounds that: he was charged with having committed murder in the course of a burglary, but he was found guilty of theft of property rather than burglary; he was denied his right to be informed of the charge against him and to have a copy of the charging instrument; he was denied his right to obtain a witness in his favor; he was not afforded effective assistance of counsel at trial; and it was a violation of the constitutional prohibition against double jeopardy found in the Fifth Amendment to retry him after this court

reversed the original judgment.

The only issue contained in the instant petition that would be sufficient, if demonstrated, to

render the judgment a complete nullity is the assertion that he was placed in jeopardy twice by virtue of his having been retried on remand. The double jeopardy question was argued at trial and on direct appeal, and this court specifically held that double jeopardy did not bar petitioner's retrial. Rule 37.1 does not provide a means to reargue an issue settled on appeal. Dunham v. State, 315 Ark. 580, 868 S.W.2d 496 (1994).

Petition denied.

1 For clerical purposes, the petition has been filed under the docket number assigned to the direct appeal of the judgment when it was lodged in the this court in 1989.

2 Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989. In the Matter of the Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. Appx. 573, 770 S.W.2d 148 (1989). Rule 37 was reinstated in a revised form on January 1, 1991. In the Matter of the Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. Appx. 746, 797 S.W.2d 458 (1990). The revised rule does not require petitioners to gain leave of this court before proceeding in the trial court.