Lead Opinion
Lin 1997, appellant Jeffrey Wendell Edwards was found guilty by a jury in the Washington County Circuit Court of rape, attempted rape, commercial burglary, and second-degree battery. In addition, the trial court revoked Edwards’s' probation for prior offenses of residential burglary and theft of property. The sentences for the six offenses were ordered to be served consecutively for a total of 70 years’ imprisonment. The Arkansas Court of Appeals affirmed. Edwards v. State, No. CACR-98-362,
On May 25, 2016, Edwards filed in the Jefferson County Circuit Court, which is in the county where the headquarters of the Arkansas Department of Correction (“ADC”) is located, a pro se petition for writ of habeas corpus.
LA circuit court’s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon,
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,
Edwards argued in his habeas petition that he was' subjected to double jeopardy because the same elements that were used to prove that he committed rape were used to prove that he committed attempted rape. He further contended that the attempted rape of the same victim rendered the judgment invalid because attempted rape is a lesser-in'cluded offense of rape.
|3We affirm the order because Edwards did not state a ground on which a writ of habeas corpus could be issued. While some double-jeopardy claims are cognizable in habeas corpus proceedings, where the petitioner does not show that on the face of the commitment order there was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Fields,
Edwards’s allegation that attempted rape is a lesser-included offense of rape is also an issue that could have been addressed at trial. More importantly, it cannot be discerned from the face of the judgment that Edwards was convicted of an offense and also convicted of a lesser-included offense to that offense. Because the judgment-and-commitment order did not reflect on its face that appellant was convicted of both an offense and a lesser-included offense to that offense and because Edwards did not establish that the trial court laeked jurisdiction in his case, he did not meet his burden of showing that the face of the judgment demonstrated that the judgment was invalid. Russell v. Kelley,
| ¿Edwards refers in his brief to the fact that the circuit court entered its decision to dismiss his petition for writ of habeas corpus without a hearing. If the statement was intended to raise the failure to hold a hearing as a point for reversal of the order, we have held that a hearing on a petition for writ of habeas corpus is not required if the petition does not allege either of the bases for relief proper in a habeas proceeding; and even if a cognizable claim is made, the writ will not be issued unless probable cause is shown for the writ to be issued. Philyaw,
Finally, Edwards contends that the circuit court erred by declaring that the habeas petition constituted a “strike” under Arkansas Code Annotated section 16-68-607 (Repl. 2005). Section 16-68-607 precludes an incarcerated person from bringing a civil action or an appeal therefrom when he has, on three or more prior occasions, brought an action that was frivolous, malicious, or failed to state a claim on which relief may be granted. Habeas petitions that fail to state a claim on which relief can be granted are appropriately counted as strikes under section 16-68-607. Because Edwards’s petition clearly failed to state a claim on which relief was merited, it was not error for the circuit court to declare that the petition constituted a strike under the statute.
Affirmed.
Notes
. Even though Edwards is housed in Texas by agreement between the Director of the ADC and Texas authorities, he remains under the jurisdiction of the Director, and a writ of habeas corpus is ' returnable in Jefferson County. Hundley v. Hobbs,
Concurrence Opinion
concurring in part and dissenting in part.
|fiI concur with the majority’s opinion affirming the circuit court’s dismissal of Edwards’s habeas petition; I respectfully dissent solely on the majority’s analysis of Ark. Code Ann. § 16-68-607 (Repl. 2005). As the majority noted, the statute prevents an indigent incarcerated person from bringing a civil action or appealing from such a proceeding if he has previously brought three or more meritless claims. In Watts v. Kelley we held that, based on our constitution, a habeas petition could not count as a “strike” under the statute.
Karen R. Baker, Justice, dissenting.
Without citation to any authority, the majority’s opinion holds that “[hjabeas petitions that fail to state a claim on which relief can be granted are appropriately counted as strikes under section 16-68-607.” This holding is in direct contravention of the Arkansas Constitution and our recent, unanimous decision in Watts v. Kelley,
Prior to Watts, in a series of per curiam orders, we incorrectly affirmed the circuit court’s decision to designate appellants’ habeas corpus petitions as a strike.
Specifically, in Watts, we considered the 2005 version of Arkansas Code Annotated section 16-68-607, which is also applicable to the facts of the present case. Section 16-68-607 provided,
In no event shall an incarcerated person bring a civil action or appeal a judgment in a civil action or proceeding under the Arkansas indigency statutes if the incarcerated person has on three (3) or more prior occasions, while incarcerated or detained in any facility, brought an action that is frivolous, malicious, or fails to state a claim upon which relief may be. granted, unless the incarcerated person is under imminent danger of serious physical injury.
Ark. Code Ann. § 16-68-607 (Repl. 2005) (amended 2017). Although we dismissed Watts’s appeal on other-grounds, we explained,
The Arkansas Constitution provides: “The privilege of the writ of habeas corpus shall not be suspended, except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it.” Ark, Const, art. 2, § 11. In Renshaw v. Norris,337 Ark. 494 ,989 S.W.2d 515 (1999), we were faced with the question. of whether there are time limits on when a petitioner must file a writ of habeas corpus based on an illegal sentence. We explained that neither the Arkansas Constitution nor the statutes, at issue placed a time limit on pursuing a writ of habeas corpus. “To do so would contravene the proscription against suspending the right to habeas corpus.”337 Ark. at 499 ,989 S.W.2d at 518 . To place a time limit on when a writ of habeas corpus must be filed, would amount to a “suspension” and would violate the Arkansas Constitution. See Ark. Const. , art. • 2, § 11. :
Therefore, pursuant- to Renshaw, Watts could proceed on his writ of habe-as corpus petition as a pauper even though he had accrued three strikes. To hold otherwise would, similar to Ren-shaw, amount to placing a limit 'on when a petitioner can file a writ of habeas corpus in violation of the Arkansas Constitution.
Watts,
However, despite Watts, here, the majority erroneously concludes that “[b]e-cause Edwards’s petition clearly failed to state a claim on which relief was merited, it was not error |afor the circuit court to declare that the petition, constituted a strike under the statute.” This statement is wrong. It was error for the circuit court to declare that the petition constituted a strike. Further, by ignoring Watts and affirming the circuit court, the majority knowingly violates Edwards’s constitutional right to file a habeas 'corpus petition. Pursuant to Watts, to count Edwards’s habeas corpus petition as a strike amounts to a time limit on when Edwards can file a writ of habeas corpus. This constitutes a suspension of the right to habeas corpus and,is in clear violation of the Arkansas Constitution. My position is further supported by the legislature’s April 7, 2017 amendment to section 16-68-607. The 2017 version of section 16-68-607 now specifically pi’ovides that a civil action or proceeding does not include a writ of habeas corpus:
(a)(1) As used in this section, “civil action or proceeding” includes without limitation a legal action filed in federal or state court.
(2) A “civil action , or proceeding” does not include:
(a) A petition for writ of habeas corpus;
(b) A petition for writ of error co-ram nobis; or
(c) A petition for relief under Rule 37 of the Arkansas Rules of Criminal Procedure.
(b) Unless the incarcerated person is under imminent danger of serious physical injury, an incarcerated person may not bring a civil action or appeal a judgment in a civil action or proceeding under the Arkansas indigency statutes if, on three (3) or more prior occasions while incarcerated or detained in any facility, the incarcerated person brought an action that was determined by a court to:
(1) Be frivolous or malicious; or
(2) Fail to state a claim upon which relief may be granted.
Act of Apr. 7, 2017, Ño. 1110, 2Ó17 Ark. Acts_While I recognize that the 2017 version of section 16-68-607 became effective on August 1,2017 and is not applicable to the present |acase, the 2017 amendment does clarify that a petition for writ of habeas corpus was never intended to be counted as a strike under the statute. Although we recognized our error in Watts, it is embarrassing that the legislature was forced to correct this court’s unconstitutional error in interpreting section 16-68-607. Yet, despite Watts and the legislature’s correction, my learned colleagues persist in interpreting the statute in a manner that renders the statute unconstitutional. Moreover, the applicable version of section 16-68-607 cannot be interpreted to apply to habeas corpus, because such an interpretation would render the statute unconstitutional. If it is possible to construe an act so that it will pass the test of constitutionality, the courts not only may, but should and will, do so. Love v. Hill,
In sum, by affirming the circuit court’s decision to count Edwards’s petition for writ of habeas corpus as a strike, the majority has failed to'adhere to the mandates of the Arkansas Constitution and brazenly violates Edwards’s constitutional right. Therefore, I must dissent.
Hárt, J., joins in this dissent.
. See McArty v. Hobbs,