Ted Hamilton v. James Banks, Warden, and Larry Norris, Director, Arkansas Department of Correction
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ARKANSAS SUPREME COURT
No.
NOT DESIGNATED FOR PUBLICATION
TED HAMILTON
Appellant
v.
JAMES BANKS, WARDEN, and
LARRY NORRIS, DIRECTOR,
ARKANSAS DEPARTMENT OF
CORRECTION
Appellees
06-1055
Opinion Delivered
December 7, 2006
PRO SE MOTIONS FOR
APPOINTMENT OF COUNSEL AND
FOR DUPLICATION OF
APPELLANT’S BRIEF AT PUBLIC
EXPENSE [CIRCUIT COURT OF
IZARD COUNTY, CV 2006-57, HON.
TIMOTHY M. WEAVER, JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
In 2004, Ted Hamilton was sentenced to 180 months’ imprisonment for residential burglary
in Miller County. Appellant, who remains incarcerated in the Arkansas Department of Correction,
filed a petition for writ of habeas corpus in Izard County, Arkansas, seeking reinstatement of his
transfer to supervision by the Department of Community Correction. The trial court denied the
petition. Appellant, proceeding pro se, has lodged an appeal in this court from the trial court’s order.
Now before us are appellant’s pro se motions for appointment of counsel and duplication of
appellant’s brief at public expense. We need not consider these motions as it is apparent that
appellant could not prevail in this appeal if it were permitted to go forward. Accordingly, we dismiss
the appeal and hold the motions moot. This court has consistently held that an appeal from an order
that denied a petition for postconviction relief will not be permitted to go forward where it is clear
that the appellant could not prevail. See 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).
We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly
erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146
S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it,
the appellate court after reviewing the entire evidence is left with the definite and firm conviction
that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
Here, while incarcerated in the Cummins Unit of the Arkansas Department of Correction,
appellant applied with the Post Prison Transfer Board for early release from his sentence. After
initially being denied, appellant sought a hearing and was granted a transfer to supervision by the
Department of Community Correction in a Record of Release Consideration dated July 5, 2005,
subject to certain conditions. Appellant was eventually transferred to the North Central Unit in Izard
County.
Later, in a Record of Release Consideration dated March 6, 2006, the Post Prison Transfer
Board rescinded the transfer to the Department of Community Correction. The document indicated
that the decision was made after a hearing on August 26, 2005. Appellant filed a petition for writ
of habeas corpus in Izard County, naming as respondents the warden of the North Central Unit and
the director of the Arkansas Department of Correction.1
1
In his petition, appellant maintained that he was not given notice of the hearing held on
August 26, 2005, which resulted in his transfer’s being rescinded. He claimed that failure to be
notified about the hearing resulted in denial of due process as he had a “conditional liberty”
interest or “conditional entitlement” interest in his prospective parole. Further, he argued that
denial of parole would result in an “increased period of incarceration of 43 months.”
Appellant posited a second issue in which he sought determination of whether a “parole
grantee [has] a right to . . . be heard in person and to present witnesses and documentary
evidence” when the Post Prison Transfer Board rescinds its approval of parole previously granted
to a criminal defendant. As his remedy, he prayed for reinstatement of parole granted by the
-2-
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. Ark. Code Ann. §16-112-103(a) (Repl.
2006). See also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Moreover, this court
has specifically noted that the remedy of state habeas corpus is unavailable for attacking parole
decisions, including eligibility for parole and revocation of parole. See Blevins v. Norris, 291 Ark.
70, 722 S.W.2d 573 (1987); Baker v. Lockhart, 288 Ark. 91, 702 S.W.2d 403 (1986) (per curiam);
Bargo v. Lockhart, 279 Ark. 180, 650 S.W.2d 227 (1983).
In the instant matter, appellant makes no contention the court that convicted him was without
jurisdiction, or that the judgment was facially invalid. Instead, he claimed only injury related to
parole eligibility. His remedy, therefore, was not by habeas corpus. We find no error in the trial
court’s decision, and accordingly dismiss the appeal and hold the motions moot.
Appeal dismissed; motions moot.
Board after the June 30, 2005, hearing, including all conditions set forth therein. In support of
his contentions, appellant relied upon the regulations of the Board.
-3-
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