Clem v. HobbsClem v. Hobbs
PER CURIAM
In 2001, appellant Joe Edwin Clem was found guilty by a jury in the Craighead County Circuit Court of one count of rape and three counts of accomplice to rape. The victims were his son and daughter. He was sentenced to three terms of life imprisonment and one term of 480 months’ imprisonment. We affirmed. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). In 2010, appellant filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied, and appellant lodged an appeal in this court. Now before us is appellant‘s motion for extension of time to file his brief-in-chief.
We need not address the merits of the motion because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motion is moot. An appeal from an order that denied a petition for postconviction relief, including
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. Daniels v. Hobbs, 2011 Ark. 192 (per curiam) (citing Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103); Moore, 2010 Ark. 380; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner 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, 365 Ark. at 221, 226 S.W.3d at 798-99;
Appellant contended that he was entitled to release on a writ of habeas corpus because venue was not proper in Craighead County, he was denied effective assistance of counsel at trial, a conflict of interest was created because two public defenders from the same firm represented him and his wife in separate proceedings against them, he and his wife had shared
Petitioner did not explain his contention that venue was not proper in Craighead County where the trial was held. If petitioner intended the claim to call into question the jurisdiction of the trial court, a conclusory allegation of lack of jurisdiction is not sufficient to support a petition for writ of habeas corpus. McCullough v. State, 2010 Ark. 394 (per curiam); see also Barnes v. State, 2011 Ark. 153 (per curiam).
With respect to appellant‘s assertion that he was denied effective assistance of counsel, a claim of ineffective assistance of counsel is not cognizable in a habeas proceeding. Tryon v. Hobbs, 2011 Ark. 76; Grimes v. State, 2010 Ark. 97 (per curiam). Allegations concerning counsel‘s effectiveness are properly raised in a timely petition pursuant to our postconviction rule, Arkansas Rule of Criminal Procedure 37.1 (2011). Moore, 2010 Ark. 380; Hill v. Norris, 2010 Ark. 287. A petition for writ of habeas corpus is not a substitute for proceeding under
Finally, appellant‘s contention that he was entitled to release on the ground that his sentence violated the Eighth Amendment was not well taken. Appellant did not contend that
Appeal dismissed; motion moot.