Barnes v. State
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Cite as 2011 Ark. 153
SUPREME COURT OF ARKANSAS
No.
11-108
Opinion Delivered April 7, 2011
GUY CLAYTON BARNES
Appellant
v.
STATE OF ARKANSAS
Appellee
PRO SE MOTIONS TO AMEND THE
EVIDENCE AND FOR EXTENSION
OF TIME TO FILE BRIEF [LEE
COUNTY CIRCUIT COURT, CV
2010-130, HON. RICHARD L.
PROCTOR, JUDGE]
APPEAL DISMISSED; MOTIONS
MOOT.
PER CURIAM
Appellant Guy Clayton Barnes is an inmate incarcerated in the Arkansas Department
of Correction (“ADC”). He filed in the county in which he is incarcerated a petition for writ
of habeas corpus under Arkansas Code Annotated §§ 16-112-101 to -123 (Repl. 2006). The
circuit court denied the petition, and appellant lodged this appeal. He now has filed two
motions. One appears to request that this court accept evidence in the matter, and the other
motion seeks an extension of time in which to file appellant’s brief. We need not address the
merits of the motions because we dismiss the appeal, and the motions are therefore moot.
An appeal from an order that denied a petition for a postconviction relief, including
a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that
the appellant could not prevail. Hill v. Norris, 2010 Ark. 287 (per curiam). A review of the
record on appeal makes clear that appellant cannot prevail.
Cite as 2011 Ark. 153
The petition that appellant filed requested relief from a 2010 judgment that apparently
reflected his convictions for drug charges. The case numbers written on the petition, however,
appear to be those for a 1995 conviction. The grounds for relief listed in the petition allege
errors in time computation and date of the offense that somehow relate to the trial court’s
apparent order that certain sentences run concurrently or consecutively. Appellant asserted
that these errors resulted in an invalid sentence and illegal term of detention. He also sought
to collaterally challenge charges in the 1995 conviction on the same basis as a “filed Rule 37, petition.”
The exhibits to the petition included a document that appears to be from the ADC
that lists appellant’s sentences on a number of charges, only some of which are referenced in
the habeas petition. The exhibits also included a document that lists handwritten comments
on a number of the sentences in the ADC document, contending that some of the sentences
should have included suspended sentences, that some sentences were concurrent or
consecutive, that one of the case numbers was incorrect because of the date of the offense,
that the suspended sentences were not consistent with the charging statutes, that there was a
deviation from the sentencing grid, and that an arrest warrant was invalid. Appellant
additionally included in the exhibits his “affidavit” that stated that the other two documents
demonstrated a time calculation error, that the error resulted in an illegal period of unlawful
detention, and that a “sentencing phase Record” was necessary to his claims under his “Rule
37, petition” that were reincorporated for habeas relief.
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Cite as 2011 Ark. 153
The circuit court concluded that appellant was alleging that the convictions on the case
numbers listed in the petition and on the last three offenses listed in the ADC document were
void. In the order denying relief, the court noted that the petitioner carries the burden in
habeas proceedings and found that the petition contained conclusory allegations and lacked
merit. We agree that the petition did not set forth a claim sufficient to support habeas relief.
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. McCullough v. State, 2010 Ark. 394 (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. Id. Appellant’s petition did not
contain such a demonstration, and, in addition, the record in this court is insufficient to
review the claims appellant raised. The burden is on the party asserting error to bring up a
sufficient record upon which to grant relief. Shipman v. State, 2010 Ark. 499 (per curiam).
Although the trial court assumed that appellant challenged a number of judgments
against him, that was not clearly the intent. Appellant rather appeared to challenge the ADC’s
calculations instead of the actual judgments. No copies of the judgments were included in the
exhibits, and, as noted, it was far from clear which, if any, judgments were the subject of the
petition. Appellant had the burden to state a cognizable claim as to a judgment. See Anderson
v. Norris, 370 Ark. 110, 257 S.W.3d 540 (2007) (per curiam).
Appellant did include in the petition allegations that he was subject to illegal detention
and that some of his sentences were void or illegal. He did not, however, sufficiently describe
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Cite as 2011 Ark. 153
for any claim how the judgment that he alleged was illegal or void so as to present a
cognizable claim. As to three case numbers, he indicated that there was “a time computation
error.” The specific error is never, however, clearly identified. For a conviction on a forgery
charge listed in the ADC document that was attached as an exhibit, appellant appears to
contend that the sentence was a Class Y felony rather than the C felony listed. But, to the
extent that appellant would challenge that judgment, no record of the judgment was
included.1
The circuit court found the claims were conclusory. To the extent that they are not,
appellant did not provide sufficient information in the petition to state a claim regarding any
specific judgment. To the extent that appellant attempted to resurrect claims previously raised
in a proceeding under Arkansas Rule of Criminal Procedure 37.1 (1995), the claims were not
cognizable.2 A petition for writ of habeas corpus is not a substitute for proceeding under Rule
37.1. Tryon v. Hobbs, 2011 Ark. 76 (per curiam). Appellant failed to meet his burden to state
in his petition a claim that would support issuance of the writ, and he cannot therefore prevail
on appeal.
Appeal dismissed; motions moot.
1
We are, moreover, unaware of any record in this court containing such a judgment.
2
The records of this court show that appellant filed a Rule 37.1 petition in 1995. See
Barnes v. State, CR 96-114 (Ark. Mar. 25, 1996) (unpublished per curiam). It is unclear
whether this or another petition was referenced in the habeas petition.
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