TOMMY MARTEZ BARBER v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION
No. CV-16-1008
SUPREME COURT OF ARKANSAS
JUNE 8, 2017
2017 Ark. 214
HONORABLE JODI RAINES DENNIS, JUDGE
APPELLEE‘S MOTION TO DISMISS APPEAL AND APPELLANT‘S PRO SE MOTION FOR BELATED APPEAL [JEFFERSON COUNTY CIRCUIT COURT, NO. 35CV-16-513]
KAREN R. BAKER, Associate Justice
In 2013, appellant Tommy Martez Barber entered a plea of guilty to murder in the first degree and was sentenced to 480 months’ imprisonment. In 2016, Barber, who was inсarcerated in Jefferson County, filed in the Jefferson County Circuit Court a pro se petition for writ of habeas corpus, seeking release frоm custody. On October 5, 2016, an order was entered dismissing the petition because Barber did not state a basis for issuance of the writ.
On November 10, 2016, Barber lоdged an appeal in this court from the order. He was informed by letter from the Office of the Criminal Justice Coordinator that his brief was due to be filed no later than December 20, 2016. Our clerk also mailed a copy of the
Barber did not file a brief or file a motion for extension of briеf time, and, on March 6, 2017, the State filed the motion that is now before us to dismiss the appeal on the grounds that the appellant had failed to submit а brief or otherwise take any action to pursue the appeal. On March 20, 2017, Barber filed a pro se motion “to file a belated aрpeal,” which we treat as a motion to file a belated brief.
Failure of a party in an appeal to file a brief may constitute аbandonment of the appeal. See Hogue v. Hogue, 262 Ark. 767, 561 S.W.2d 299 (1978). Arkansas Supreme Court Rule 4-5 (2016) provides that a civil appeal may be dismissed if a brief is not timely filed. Barber urges this court to permit him to proceed with the appeal despite his failure to timely file a brief because he never recеived notice that the appeal had been lodged and a briefing schedule set for the appeal. He contends that the mail service where he is incarcerated is unreliable and his mail could have been delivered to another inmate. He also argues that he should be permitted to proceed because the appeal is meritorious.
We grant the State‘s motion to dismiss the appeal. A litigant‘s failure to act in accordance with the prevailing rules of procedure will not be excused solely on the grounds that he was acting pro sе, and the fact of incarceration does not, in and of itself, excuse a prisoner from complying with the rules. See Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994) (noting that pro se litigants must сonform to the rules of procedure). Barber‘s conclusory claim that his mail may have gone to another inmate does not constitute good cause to permit the appeal to go forward. If an unsubstantiated allegation of failure of the
While Barber‘s failure to state good cause for not filing a brief or filing a motion to extend the brief time would be sufficient reason to grant the State‘s motion to dismiss the appeal, we further note that Barber‘s contention that the appeal has merit is unfounded. Barber argued the following grounds for the writ in his habeas petition: his plea of guilty violated the prohibition against self-incrimination; he was not charged by grand jury аs required by law; the trial court did not abide by Arkansas Rule of Criminal Procedure 24.4 (2016) when it accepted his plea; the trial court did not establish a factual basis for the plea; the trial court did not establish that the plea was voluntarily entered; he was not afforded effective assistance of counsel in the plea proceeding. None of the allegations stated a ground on which a writ of habeas corpus could properly be issued.1
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual innocence and proceed under Aсt 1780 of 2001 Acts of Arkansas 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 is illegally detained.
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, at 5, 434 S.W.3d 364, 367. A dеcision 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. Smith v. Kelley, 2016 Ark. 307, at 2. There was no error in the circuit court‘s decision to dismiss Barber‘s habeas petition because he did not establish that the trial court lacked jurisdiction in his case or that the commitment was invalid on its face.
When a defendant enters a plea of guilty, the plea is his trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). A habeas corpus proceeding does not afford a prisoner an oрportunity to retry his case. Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283. Accordingly, claims of trial error such as those advanced by Barber in his petition are not within the purview of the remеdy because the writ will not be issued to correct errors or irregularities that occurred at trial. See Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Habeas proceedings are аlso not a means to challenge the sufficiency of the evidence in a case. See Blevins v. Norris, 291 Ark. 70, 71, 722 S.W.2d 573, 574 (1987) (Habeas corpus petitions are restriсted to the questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction.). Claims of an involuntary plea or of improper plea procedures also do not raise a question of a void or
Finally, claims of ineffective assistance of counsel, which are properly raised under
Appellee‘s motion to dismiss appeal granted; appellant‘s motion to proceed with a belated appeal treated as motion tо file a belated brief and moot.
Tommy Martez Barber, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: David R. Raupp, Sr. Ass‘t Att‘y Gen., for appellee.