Case Information
ARKANSAS SUPREME COURT No. CR -13-504
Opinion Delivered July 31, 2014 JAMES GIRLEY PRO SE APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT [NO. 60CR-98-461] V. HONORABLE HERBERT T. WRIGHT,
RAY HOBBS, DIRECTOR, ARKANSAS JUDGE DEPARTMENT OF CORRECTION APPELLEE
AFFIRMED.
PER CURIAM
In 1998, appellant James Girley was found guilty of rape by a jury in the Pulaski County Circuit Court and sentenced to 300 months’ imprisonment. The Arkansas Court of Appeals affirmed as modified. [1] Girley v. State , CR-98-1108 (Ark. App. Mar. 24, 1999) (unpublished) (original docket no. CACR 98-1108).
In 2013, appellant filed in the trial court a pro se petition for writ of habeas corpus
pursuant to Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208
(Repl. 2006). Act 1780, as amended by Act 2250 of 2005, provides that a writ of habeas corpus
can issue based on new scientific evidence proving a person actually innocent of the offense for
which he was convicted. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2006); Ark. Code Ann. §
16-112-201;
Biggs v. State
,
The generally applicable standard of review of an order denying postconviction relief
dictates that this court does not reverse unless the circuit court’s findings are clearly erroneous,
although issues concerning statutory interpretation are reviewed de novo.
Cooper v. State
, 2013
Ark. 180 (per curiam) (citing
Echols v. State
,
In his petition under the statute, appellant contended that there was scientific evidence in the form of DNA testing not available at the time of his trial that was more probative than earlier DNA testing methods and that could establish his actual innocence. He identified the testing as “short tandem repeat techniques.” He asserted that the State is in possession of DNA evidence from the sexual-assault kit from the medical examination of the rape victim that supports his claim of innocence and should be compared to his DNA. He further claimed that the request for the DNA testing was timely under the statute because (1) he was incompetent to make the request earlier, (2) perjured scientific evidence was introduced at his trial, and (3) the sexual-assault kit was not introduced into evidence at trial and is thus “newly discovered evidence.”
The trial court held that the petition was untimely, citing
Hamm v. Office of Child Support
Enforcement
,
On appeal, appellant argues that the evidence from the sexual-assault kit was suppressed
by the prosecution in violation of
Brady v. Maryland
,
Before a circuit court can order testing under the statute, there are a number of predicate
requirements that must be met.
King v. State
,
that the motion is not based solely upon the petitioner’s own assertion of innocence, and a denial of the motion would result in a manifest injustice; (4) that a new method of technology exists that is substantially more probative than was the testing available at the time of the conviction; or (5) for other good cause. Ark. Code Ann. § 16-112-202(10)(B)(i)–(v).
In the instant case, appellant filed his pleadings in the trial court approximately fifteen years after the judgment-and-commitment order had been entered of record and approximately seven years after section 16-112-202 had been amended to include the 36-month limitation. He failed to state any basis to rebut the presumption against timeliness.
First, the claim of a Brady violation is raised for the first time in this appeal. For that reason, we will not consider it. If the issue was not raised in the petition, the trial court did not have the opportunity to rule on the issue, and this court will not consider issues on which there was no ruling below or arguments in support of a claim that are advanced for the first time on appeal. See Williams v. State , 2013 Ark. 375 (per curiam); Green v. State , 2013 Ark. 455 (per curiam).
With respect to the claims that were raised below pertaining to the timeliness of the petition, appellant offered no factual support in his petition for the assertion that his incompetence caused him to delay filing his petition seeking short-tandem-repeat DNA testing. He also offered no proof that the technology was not available at the time of his trial or that there was any other good cause for his failure to raise his claim under the statute within the thirty-six-month window allowed by the statute. Because appellant failed to rebut the presumption against timeliness in Arkansas Code Annotated section 16-112-202(10), the trial
court did not err in declining to order the DNA testing requested.
Affirmed.
James Girley , pro se appellant.
Dustin McDaniel , Att’y Gen., by: Valerie Glover Fortner , Ass’t Att’y Gen., for appellee.
Notes
[1] The judgment, entered erroneously, reflected a sentence of 400 months’ imprisonment. The court of appeals modified the sentence to the correct sentence of 300 months’ imprisonment and directed the trial court to enter an order reflecting the modification.