CARL DAVIS, JR. V. STATE OF ARKANSAS AND RAY HOBBS, DIRECTORCARL DAVIS, JR. V. STATE OF ARKANSAS AND RAY HOBBS, DIRECTOR
APPEAL DISMISSED; MOTIONS MOOT.
PER CURIAM
In 1991, appellant Carl Davis, Jr., was found guilty of aggravated robbery and sentenced as a habitual offender to seventy years’ imprisonment. We affirmed. Davis v. State, CR 91-290 (June 22, 1992) (unpublished). A pro se petition for rehearing was denied. Davis v. State, CR 91-290 (October 5, 1992) (unpublished).
On July 19, 2010, appellant, who is incarcerated in the custody of the Arkansas Department of Correction by virtue of the conviction, filed in the circuit court in the county where he is incarcerated a pro se petition for writ of habeas corpus pursuant to
Appellant now seeks by pro se motion leave to file a belated reply brief and leave to amend that motion. We need not address the merits of the motions because it is clear from
Appellant failed to demonstrate in his petition that the writ was warranted. The burden is on the petitioner in a petition for writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Moore, 2010 Ark. 380; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner who does not allege his actual innocence1 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. Young at 221, 226 S.W.3d at 798-99;
Appellant contended in his petition that the trial court lacked jurisdiction in his case
There is a presumption that a deputy prosecuting attorney acts under the direction of his superior. Until the authority is questioned and there is a failure of the prosecuting attorney to affirm, the information, being voidable only, is sufficient to bring the defendant before the court, and in consequence such court acquires jurisdiction.
In Eason & Fletcher, this court further held that an information must be challenged in the trial court before it can be declared void. We found that neither Eason nor Fletcher, at any stage in the proceedings, objected to the form of the information. Consequently, we held that a “presumption of verity” attached to the information throughout the trial, and we reversed the judgment with directions to dismiss the writs of habeas corpus.
Since our decision in State v. Eason & Fletcher, we have consistently held that the proper time to object to the form or sufficiency of an indictment or information is prior to trial. See Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962);
Appellant also contended in his petition that the information was invalid because it did not list the prior convictions that the state intended to rely on to prove that he was a habitual offender. The claim was one that is properly raised in the trial court, not as a ground for a writ of habeas corpus. A non-jurisdictional challenge to the sufficiency of an information must be raised prior to trial. See Ray v. State, 344 Ark. 136, 40 S.W.3d 243 (2001) (citing McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998)).
Appellant further argued that the prosecutor’s remarks to the jury that appellant should be sentenced to eighty years’ imprisonment amounted to prosecutorial misconduct.
As for the prosecutor’s remarks at trial, mere trial error, even if established, is a matter to be addressed at trial. It is not grounds for habeas relief. See Hill v. Norris, 2010 Ark. 287 (per curiam).
Appeal dismissed; motions moot.