Aрpellant Vernell Conley appeals the circuit court's denial of his petition for a writ of habeas corpus. For reversal, Conley argues that (1) the circuit court erred in holding that his claims were not appropriate
I. Background
By amended felony information, the prosecuting attorney in Washington Cоunty charged Conley with delivery of a controlled substance (crack cocaine); possession of a controlled substance (marijuana) with intent to deliver; and possession of drug paraphernalia (digital scales). The information also alleged that Conley was a habitual offender with more than four previous felony convictions. Conley stood trial before a jury on August 26, 2010. The State's evidence disclosed that Conley delivered 0.5813 grams of crack cocaine to underсover police officers. According to the testimony, the delivery occurred on the evening of September 15, 2009, at a park in Fayetteville. However, the officers did not arrest Conley until November 6, 2009. On that date, the officers also executed a search warrant at Conley's home, where they discovered 32.5 grams of marijuana in a plastic bag and a set of digital scales. The jury found Conley guilty of delivery of crack cocaine and possession of the digital scales аs drug paraphernalia. The jury acquitted Conley of possession of marijuana with intent to deliver and instead found him guilty of the lesser-included offense of possession of marijuana. As a habitual offender, Conley received sentences of sixty years for delivery of a controlled substance, six years for possession of a controlled substance, and thirty years for possession of drug paraphernalia.
Thereafter, Conley filed a petition for postconviction relief pursuant to Rule 37.1. The circuit court later granted Conley leave to file an amended petition, and in that amended petition, he alleged that he was denied effective assistance of counsel because his trial сounsel (1) failed to present a witness after informing the jury in his opening statement that he would produce a witness who would testify that the marijuana and the paraphernalia did not belong to Conley, (2) did not make adequate motions for directed verdict, and (3) failed to move for severance of the possession and delivery offenses. The circuit court denied the petition, and Conley appealed. On appeal, we affirmed on Conley's first point when we could not conclude that he suffered any prejudice from counsel's remark in opening statement. Conley v. State ,
THIS POSTCONVICTION CRIMINAL APPEAL WAS SUBMITTED TO THE ARKANSAS SUPREME COURT ON THE RECORD OF THE WASHINGTON COUNTY CIRCUIT COURT AND BRIEFS OF THE RESPECTIVE PARTIES. AFTER DUE CONSIDERATION, IT IS THE DECISION OF THE COURT THAT THE JUDGMENT OF THE CIRCUIT COURT IS AFFIRMED IN PART; REVERSED AND REMANDED IN PART WITH DIRECTIONS FOR THE REASONS SET OUT IN THE ATTACHED OPINION.
Conley filed a federal habeas petition on March 26, 2015. On Conley's motion, the federal proceedings were held in abeyancе to allow him to exhaust his state remedies. Pursuant to our opinion in Conley's Rule 37 appeal, the Washington County Circuit Court entered a formal order on August 27, 2015, dismissing Conley's possession convictions. However, the circuit court did not conduct a resentencing hearing on the delivery charge or enter a new judgment and commitment order reflecting the dismissal of the two possession convictions. On April 7, 2017, Conley filed a motion to recall the mandate in his Rule 37 appeal and for leave to filе an out-of-time petition for rehearing. We unanimously denied that motion on April 27, 2017. Conley remains imprisoned on his 720-month delivery sentence.
II. State Habeas Petition
Conley filed his petition for a writ of habeas corpus in the Lincoln County Circuit Court on January 26, 2018.
A. Standard of Review
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley ,
A circuit court's decision on a petition for a writ of habeas corpus will be upheld unless it is clearly erroneous. Johnson v. State ,
B. Analysis
Conley first argues that the circuit court erred in concluding that his claims were not appropriate for resolution in the habeas corpus process. In dismissing his petition, the circuit court found that Conley's delivery conviction had been addressed on direct appeal and in a Rule 37 petition, and that "[a] habeas corpus proceeding does not provide a means to revisit the merits of issues that could have been addressed and settled, in the trial court, on appeal, or in a post-conviction proceeding." The circuit court concluded that Conley's allegations did not offer any evidence establishing probable cause that he is entitled to a writ of habeas corpus.
Conley suggests that because his existing judgment and commitment order continues to reflect the two dismissed possession convictions, he has alleged a jurisdictional defect that is cognizable in a habeas petition. In our Rule 37 opinion, we affirmed in рart and reversed and remanded in part "with directions to dismiss the charges of possession of a controlled substance and possession of drug paraphernalia." Conley ,
Conley also argues in this section that even a facially valid sentence may result in jurisdictional error when it is imposed in violation of a statutorily authorized process, or if there is a change in the law that renders a previously valid sentence invalid. However, Conley's sentence was not imposed in violation of a statutorily authorized process, and unlike the claim in Jackson , Conley's claim does not concern a statutorily authorized sentence that was later declared unconstitutional. See
Conley argues in his second point that the existing judgment and commitment order is void or defective in that it continues to reflect his sentence on the two possession charges which have been dismissed. Conley asserts that the judgment contains erroneous findings regarding his delivery charge as a result of this "Court's failure to direct the trial court to conduct a re-sentencing proceeding limited to Count 1, the only count on which the jury's original verdict withstood Review in the Rule 37 appeal." Conley argues that "the trial court was not at fault in failing to order a re-sentencing hearing" and that we should correct our "procedural error in this case."
The purpose of a writ of habeas corpus is to remedy a detention of an illegal period of time. Morgan v. State ,
In his third point, Conley argues that the judgment is defective because the jury that set the sentence considered evidence not only on the delivery charge but also on the vacated possession charges. Conley cites two cases in support of this argument: Buckley v. State ,
For his final point, Conley argues that his due-process rights were violated because the jury sentenced him on the delivery count while considering evidence deemed insufficient to sustain his conviction on the two dismissed possession counts. Assertions of trial error and due process claims do not implicate the facial validity of the judgment or the jurisdiction of the circuit court. Williams v. Kelley ,
III. Conclusion
"A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case." Johnson ,
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
The circuit court clearly erred when it agreed with the State that Mr. Conley had failed to state a claim that is cognizable in an Arkansas habeas proceeding. The circuit court dismissed Mr. Conley's habeas petition without an evidentiary hearing. In its written order, the circuit court reasoned,
Habeas corpus petitions are restricted to questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction. Mere allegations do not establish probable cause. A petition for a writ of habeas corpus is not a substitute for post-conviction relief. A sufficiency of the evidence challenge is nоt a cognizable claim in a habeas action. Petitioner's challenge to the sufficiency of the charging instrument are not jurisdictional and should have been raised prior to trial.
These findings are as curious as they are illogical. In his habeas petition, Mr. Conley had asserted three grounds for relief that may be summarized as follows: (1) he remains confined on a judgment and commitment order that has been rendered void or fundamentally defective due to the supreme court's decision in the Rule 37 case; (2) he remains confined under a sixty-year sentence that was imposed by a Jury that considered the evidence supporting the marijuana and paraphernalia counts; and (3) his continued confinement under the same judgment and commitment order, which was rendered invalid by the Arkansas Supreme Court decision and was the result of the jury considering evidence relating to the two counts that the supreme court dismissed, violates due process of law. From the foregoing, it is obvious that the circuit court's findings do not address Mr. Conley's petition.
In pertinent part, the Arkansas habeas statute states:
The writ of habeas corpus shall be granted forthwith by any of the officers enumerated in S 16-112-102(a) to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted.
I will leave for another day a broader discussion of the dubious authority for the Arkansas Supreme Court's diminution of the writ of habeas corpus. At present, I
I am mindful that upon remand, the circuit court entered an order echoing our holding in the Rule 37 case, which dismissed the marijuana and paraphernalia-possession counts. However, only the judgment and commitment order and its successor the sentencing order is authorized by this court as the proper document for the final disposition of a criminal casе. See Ark. Sup. Ct. Admin. Order No. 8 ("When any charge results in a commitment to the Arkansas Department of Correction or any of the following-probation, suspended imposition of sentence, commitment to Arkansas Community Correction or to the county jail, a fine, restitution, and/or court costs-the Sentencing Order shall be submitted."). Accordingly, this court, in exercising its superintending authority over circuit courts, has made mandatory the use of the sentencing order (and its direct predecessor, the judgment and commitment оrder). Therefore, the bit of creative writing that the circuit court drafted purporting to echo our holding in the Rule 37 case is a nullity. It is untenable to require the circuit courts of this state to execute a specific document-a judgment and commitment order-and then ignore the very rules that we have promulgated. At the very least, this court should reverse and remand this case to the circuit court to enter a substituted judgment and commitment order, consistent with our opinion in the Rule 37 case.
Regаrding Mr. Conley's contention that he should have received a new sentencing hearing, arguably this court's case law that limits habeas corpus to situations in which either the trial court lacked jurisdiction or the judgment is facially invalid precludes giving Mr. Conley this relief. However, it is clear that the statutory authority for habeas corpus is much broader; it allows the writ to issue if a person is imprisoned without lawful authority.
With perfect hindsight, I can see that the relief we granted in the Rule 37 case was unjust and wrong. While it may have been tempting to "split the baby," our disposition completely ignored the dynamics and realities of a trial. Simply dismissing the paraphernalia and marijuana counts was unjust to both the State and to Mr. Conley. The grant of a new trial was the proper remedy.
Our decision to simply dismiss those counts denied the State a chance to reopen the case and provide additional evidence to link Mr. Conley to the contraband. This is the very reason why we require specific directеd-verdict motions before we consider challenges to the sufficiency of the evidence on direct appeal. When a specific directed-verdict motion is made at trial and the State offers no more proof, it is logical that the State has no other evidence
Our decision was also unjust to Mr. Conley. While he did get his ninety-year sentence reduced to sixty years, it does not diminish the fact that he nonetheless received a 60-year sentence for selling $ 100 worth of narcotics that was based at least in part on the jury's consideration of evidence of crimes that this court later dismissed. The former is a violation of the Eighth Amendment and the latter a violation of due process.
In his habeas petition, Mr. Conley quoted the following instruction that the circuit judge read to the jury at the start of the penalty phase of his trial:
Ladies and gentlemen, members of the jury, you have found Vernell Conley guilty of Delivery of a Controlled Substance Crack Cocaine, Possession of a Controlled Substance Marijuana, and Possession of Drug Paraphernalia. The law provides that after the jury returns a verdict or verdicts of guilt but before it sentences the State and the Defendant may present additional evidence to be considered by the jury in its deliberations on sentencing. In your deliberations on the sentences to be imposed you may consider both the evidence presented in the first stage of the trial where you rendered verdicts on guilt and the evidence to be presented in this part of the trial. You'll now hear evidence that you may consider in arriving at appropriate sentences.
It is virtually beyond dispute that the dismissed counts affected the jury's sentence because the circuit judge told the jury to consider the evidence in support of thosе counts. It is a well-established legal principle in Arkansas law that jurors are presumed to comprehend and follow court instructions. Kelly v. State ,
In my view, Mr. Conley is also wrongly imprisoned on a sentence that is so disproportionate as to violate the Eighth Amendment. The majority has apparently failed to recall that Jackson v. Norris ,
The writ of habeas corpus is one of the cornerstones of Anglo-American jurisprudence. It is expressly protected by the Arkansas Cоnstitution. Ark. Const. art. 2, § 11. As such, this common-law privilege is greater than our flawed case law, which has been overruled, albeit sub silentio, by the Supreme Court of the United States. Miller , supra. I would reverse and remand this case to the circuit court for further proceedings.
I dissent.
Notes
The circuit court also sentenced Conley for an earlier delivery charge to an additional term of eighty-four months to be served consecutively to the other three sentences. The jury did not decide that sentence and it is not at issue in this appeal.
Conley filed a previous habeas petition in Jefferson County, but that petition was dismissed when Conley transferred to a prison unit in a different county.