ANARIAN CHAD JACKSON v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION
No. CV-19-985
SUPREME COURT OF ARKANSAS
June 18, 2020
2020 Ark. 255
ROBIN F. WYNNE, Associate Justice
Opinion Delivered: June 18, 2020. PRO SE APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT; MOTION TO FILE AN AMENDED REPLY BRIEF; MOTION TO FILE AMENDMENT TO APPELLANT REPLY BRIEF [NO. 40CV-19-125]. HONORABLE JODI RAINES DENNIS, JUDGE. AFFIRMED; MOTIONS DENIED.
Appellant Anarian Chad Jackson filed in the circuit court in the county where he is incarcerated a petition for writ of habeas corpus pursuant to
I. Standard of Review
A circuit court‘s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision 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 made. Id.
II. Nature of the Writ
A writ of habeas corpus is proper when a judgment and commitment order is invalid on its face or when a circuit court lacks jurisdiction over the cause. Foreman v. State, 2019 Ark. 108, 571 S.W.3d 484. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). When the trial court has personal jurisdiction over the appellant and also has jurisdiction over the subject matter, the court has authority to render the judgment. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing, by affidavit or other evidence, of probable cause to believe that he or she is being illegally detained.
III. Background
In 2003, a Pulaski County Circuit Court jury convicted Jackson of first-degree murder, and he was sentenced to life imprisonment. This court affirmed. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). Jackson subsequently filed a petition for writ of habeas corpus in the Jefferson County Circuit Court alleging that Judge Bogard did not have jurisdiction to enter the judgment of conviction because Judge Bogard had not presided over his trial. The Jefferson County Circuit Court denied the petition because the judge who presided over the trial and the judge who signed the judgment had authority to act in the criminal proceedings because both had been elected within the same judicial district. See Jackson v. Kelley, 2019 Ark. 191, 575 S.W.3d 105. Without addressing the merits of Jackson‘s claim, we dismissed the petition because Jackson had been transferred to Lincoln County while the habeas appeal was pending. Id.
IV. Claims for Habeas Relief
As stated above, Jackson alleges for a second time that his judgment of conviction is illegal on its face because it
Jackson‘s additional claims for relief are not cognizable in a habeas proceeding because his claims represent allegations of trial error. Assertions of trial error and due-process claims do not implicate the facial validity of the judgment or the jurisdiction of the trial court because the writ will not issue to correct errors or irregularities that occurred at trial. Stephenson v. Kelley, 2018 Ark. 143, 544 S.W.3d 44. There is no merit to Jackson‘s claim that the admission into evidence of a particular pretrial statement deprived the court of jurisdiction. A challenge to the admission of evidence is not cognizable in a habeas proceeding. Tilson v. Kelley, 2018 Ark. 128, 543 S.W.3d 505. Finally, Jackson‘s contention that Judge Bogard did not have jurisdiction to enter the judgment because he did not recuse himself is also without merit. Claims of judicial bias amount to allegations of trial error and are not cognizable in habeas proceedings. Jefferson v. Kelley, 2017 Ark. 29, 509 S.W.3d 626 (per curiam). A trial judge‘s failure to recuse himself or herself in accordance with the Canons of Judicial Conduct does not deprive the court of jurisdiction. The circuit court did not clearly err when it denied and dismissed Jackson‘s habeas petition.
V. Entitlement to an Evidentiary Hearing
Jackson contends that the circuit court was required to appoint an attorney and conduct a hearing on his habeas petition. While our statutory habeas corpus scheme contemplates a hearing in the event the writ is issued, there is no requirement that a hearing be given a petitioner regardless of the content of the petition. Sims v. State, 2018 Ark. 271, 555 S.W.3d 868. A hearing is not required on a habeas petition—even when the petition alleges an otherwise cognizable ground—when probable cause for the issuance of the writ is not shown by affidavit or other evidence. Id. Jackson failed to demonstrate probable cause for the issuance of the writ, and the circuit court was not required to appoint counsel and hold a hearing on his petition.
Affirmed; motions denied.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. The circuit court erred in dismissing Jackson‘s habeas petition. This case involves the appointment of a special judge who presided at the trial but failed to sign
Before Tim Fox was elected to the circuit court, he was a practicing attorney in Pulaski County. Near the end of his tenure, Circuit Judge David Bogard took a vacation and Fox was appointed as a special judge in his stead. However, there is nothing in the record to suggest that the formalities of Administrative Order No. 16 were followed in appointing a special judge.
Amendment 80 § 4 of the Arkansas Constitution gives superintending control of circuit courts to the Supreme Court.1 It states that “[t]he Supreme Court shall exercise general superintending control over all courts of the state and may temporarily assign judges, with their consent, to courts or divisions other than that for which they were elected or appointed. These functions shall be administered by the Chief Justice.”
Using that superintending authority, this court has created
- Disqualification pursuant to Arkansas Code of Judicial Conduct; and or
- Temporary inability to serve; or
- Other need as determined by the Chief Justice.
Once the threshold for a special judge is met, the Chief Justice‘s duties are set forth in the next section of the Administrative Order. Section (III) provides, in pertinent part, the rules for requesting an assignment. The section clearly states a trial judge requesting that a judge be assigned shall write a letter to the Chief Judge asking that an assignment be made pursuant to one or more of the bases set forth in Section (II). Also, in cases of disqualification in judicial circuits with more than one judge, the process in the circuit‘s administrative plan should be followed. All judges in the circuit must be disqualified before an assignment will be made. One judge in the circuit is responsible for writing the letter of request, sufficient in detail to inform the Chief Justice that all judges in the circuit have recused themselves.
Even if, for argument‘s sake, we can ignore the apparent impropriety in the appointment of the special judge, it is fundamental that all documents generated be signed by the presiding judge.
As noted previously, there is nothing in the record to indicate that the factual predicate for the appointment of a special judge was present. “If the election of a special judge was not held in the prescribed manner, the judge had no judicial authority and any judgment reached by
In 1909, the General Assembly enacted the following (Laws 1909, p. 147): “Where the judge who presided at any trial shall die, become insane, or for any other cause become incapacitated before he has signed the bill of exceptions, his successor in office shall allow or correct, and sign the said bill of exceptions.”
Prior to the enactment of that statute, it was repeatedly ruled by this court that the bill of exceptions must be signed by the judge who presided at the trial, and that the only remedy, where an appellant lost his right of appeal by reason of death or incapacity of the presiding judge before the bill of exceptions was signed, was by an action in the chancery court for relief, on account of the unavoidable casualty. The act of 1909 sought to remedy this, and to give appellants appropriate relief “where the judge who presided at any trial shall die, become insane, or for any other cause become incapacitated before he has signed the bill of exceptions.” The present case does not, however, fall within the terms of that statute, for it does not appear that the presiding judge died, became insane, or in any other way incapacitated. The expiration of his term of office did not incapacitate him from signing the bill of exceptions, and notwithstanding that fact, it was his duty, and not that of the succeeding judge, to sign it.
O‘Neal v. State, 98 Ark. 449, 451, 136 S.W. 936, 936 (citing Watkins v. State, 37 Ark. 370 (1881)).
When we review the facts established in this case, it is apparent that not one circuit judge in the Pulaski County judicial district recused himself or herself from Jackson‘s case. While the Chief Justice may have some discretion in finding a need to appoint a special judge, he has no discretion to appoint in the absence of all elected judges in the district requesting. Likewise, the requirement of signature is mandatory. There is an appearance of impropriety in the face of the judgement and commitment order when an appointed special judge hears the case and a different judge signs the order. It is important for both the defendant and the public to know that the presiding judge will be accountable for fulfilling the procedures and application of the law during the trial. This accountability for properly performing his or her duties is evidenced by signing the order. This is particularly so when the highest court appoints special judges and then acts as the reviewing court for the conduct of the trial. It stands to reason that the highest court cannot allow any judge other than the presiding judge to attest to the accuracy of the proceedings. When a presiding judge fails to sign the judgment and commitment order, and a judge who has not been present does so, it invites questions concerning the trial procedure. The judge‘s attestation has no impact on whether the record is truly accurate.
The majority misunderstands the law concerning jurisdiction when it opined that subject-matter jurisdiction rests solely with the court without the presence of the judge. The judicial district and the judges that sit in that district are authorized by the legislature.2 A circuit court in each
The record indicates that Special Judge Tim Fox was temporarily in Bogard‘s courtroom while he was on vacation and when he eventually retired from the court. However, the problem is that the Sixth Circuit has more than one judge. The question to be reviewed by the fact-finder is whether the proper procedures were followed. The remaining judges of the Sixth Circuit all should have properly recused themselves before the Chief Justice appointed a special judge. The Sixth Circuit is not exempt from the procedures outlined in
The actions taken by Judge Bogard, Special Judge Tim Fox, and the Chief Justice do not conform to the procedures outlined. This court cannot affirm lower-court actions that have been performed outside the established protocols and procedures. Failure to enforce compliance undermines any constitutional and statutory protections that were afforded to the defendant. It creates doubt in the entire judicial process.
The process outlined in
Anarian Chad Jackson, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Jason Michael Johnson, Ass‘t Att‘y Gen., for appellee.