White v. Reed
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ARKANSAS SUPREME COURT
No.
08-667
Opinion Delivered
June 4, 2009
PRO SE APPEAL FROM THE CIRCUIT
COURT OF LINCOLN COUNTY, LCV
2008-31, HON. ROBERT H. WYATT,
JR., JUDGE
KENNETH WHITE
Appellant
v.
AFFIRMED.
M.D. REED, WARDEN, CUMMINS
UNIT
Appellee
PER CURIAM
In 1976, appellant Kenneth White entered a plea of guilty to first-degree murder in Howard
County Circuit Court and was sentenced to life imprisonment. Subsequently, in 1981, appellant filed
in the trial court a pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1. We
affirmed the trial court’s denial of the petition. White v. State, 277 Ark. 429, 642 S.W.2d 304
(1982).
In 2008, appellant filed a petition for writ of habeas corpus in the circuit court of the county
in which he was incarcerated. A petitioner is entitled to a writ of habeas corpus only where he
demonstrates that the commitment order is invalid on its face or that the convicting court lacked
jurisdiction. Ark. Code Ann. §§ 16-112-101–123 (Repl. 2006); Friend v. Norris, 364 Ark. 315, 219
S.W.3d 123 (2005) (per curiam). To do so, he must make a “showing, by affidavit or other evidence,
[of] probable cause to believe” that he is being illegally detained.
16-112-103(a)(1); Friend v. Norris, supra.
Ark. Code Ann. §
The circuit court denied the petition for writ of habeas corpus, and appellant has lodged an
appeal here from the order. We do not reverse a denial of postconviction relief unless the trial
court’s findings are clearly erroneous. Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004). A
finding is clearly erroneous when, although there was 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).
On appeal, appellant argues two points for reversal. First, appellant contends that the trial
court erred in finding that the sentencing court had jurisdiction over appellant’s criminal case. In
the habeas petition, appellant cited several grounds as support for the lack-of-jurisdiction claim.
Those grounds included the familial relationship of uncle and nephew that existed between the judge
and the prosecutor and the alleged errors committed by the judge.1 Beyond recognizing that the
judge was related to the prosecutor, appellant failed to articulate in the petition how that relationship
supported a claim for habeas relief.
In contrast, appellant’s brief to this court addresses the uncle/nephew relationship as the only
basis for finding that the sentencing court lacked jurisdiction to hear and rule in appellant’s firstdegree murder case. The core of appellant’s argument here is that the judge violated various canons
contained in the Arkansas Code of Judicial Conduct. He further argues that, based on these alleged
violations, the judge should have voluntarily recused from hearing the matter and the judge’s failure
to do so resulted in the judge’s loss of jurisdiction over the criminal matter.
Appellant’s argument concerning alleged violations of the judicial canons was not raised in
1
In the petition, appellant maintained that the judge committed errors when, among other things,
he refused to allow appellant to speak during the plea hearing, failed to assess whether appellant actually
understood the rights he waived by entering a plea of guilty and improperly relied upon assurances from
the prosecutor and trial counsel that appellant intended to enter a plea of guilty.
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the petition for writ of habeas corpus filed in the circuit court. Generally, parties are bound by the
scope and nature of the objections and arguments presented at trial and may not change the grounds
for an objection on appeal. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). However, when the
issue is whether the trial court acted in excess of its authority, it becomes a question of
subject-matter jurisdiction. State v. Boyette, 362 Ark. 27, 207 S.W.3d 488 (2005). A trial court’s
loss of jurisdiction over a defendant is always open, cannot be waived, and can be questioned for the
first time on appeal. Id. Here, even though appellant could raise the issue of lack of jurisdiction for
the first time in this appeal, appellant’s claim nevertheless does not demonstrate that the court was
without jurisdiction in this case.
Appellant’s second point for reversal is that the trial court erred in failing to conduct an
evidentiary hearing on appellant’s petition for writ of habeas corpus. He set out this argument in the
Points on Appeal section of the brief but fails to address it in the argument portion of the brief. Even
if we considered the claim, appellant would have been unsuccessful in obtaining a reversal on this
basis.
A hearing is not required if a petition for writ of habeas corpus does not allege that the
commitment order is invalid on its face or that the convicting court lacked jurisdiction. Baker v.
Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). Moreover, the mere failure to conduct a hearing is
not grounds to grant habeas relief. Friend v. Norris, supra.
Other grounds for relief set out in the habeas petition but not addressed on appeal are
considered abandoned. State v. Grisby, 370 Ark. 66, 257 S.W.3d 104 (2007). Appellant has failed
to demonstrate error and we affirm the circuit court order.
Affirmed.
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