HARLON FINNEY v. WENDY KELLEY, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION
No. CV-19-822
SUPREME COURT OF ARKANSAS
April 16, 2020
2020 Ark. 145
PRO SE APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT [NO. 09CV-19-81], HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
AFFIRMED.
Appellant Harlon Finney appeals from the denial of his pro se petition for writ of habeas corpus pursuant to
In 2014, Finney entered a plea of guilty to second-degree murder and was sentenced as a habitual offender to a term of 360 months’ imprisonment.1 In 2019, Finney filed the
petition for writ of habeas corpus in the county where he is incarcerated, alleging that the writ should issue because the Arkansas Department of Correction (ADC) has miscalculated his parole-eligibility status, and thus the judgment of conviction is void. Finney did not contend that the sentence was illegal or that the circuit court lacked jurisdiction in the case, only that he should be considered eligible for parole.
Finney further asserted that he was unaware when he entered the plea of guilty that his prior conviction for aggravated robbery, a violent felony, would result in his having to serve 100 percent of the 360-month term of imprisonment without being eligible for parole pursuant to
II. Grounds for Issuance of the Writ
A writ of habeas corpus is proper when a judgment and commitment order is invalid on its face or when a circuit court lacks jurisdiction over the cause. Foreman v. State, 2019 Ark. 108, 571 S.W.3d 484. Jurisdiction is the power of the court to hear and determine the subject matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). When the circuit court has personal jurisdiction over the appellant and also has jurisdiction over the subject matter, the court has authority to render the judgment. Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989).
Under our statute, a petitioner for the writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit court‘s lack of jurisdiction and make a showing, by affidavit or other evidence, of probable cause to believe that he or she is being illegally detained.
III. Standard of Review
A circuit court‘s decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
IV. Parole Eligibility
Finney‘s parole-eligibility claims are not cognizable in a habeas proceeding. Watkins v. Kelley, 2018 Ark. 215, 549 S.W.3d 908. Habeas proceedings do not extend to issues of parole eligibility and are limited to the questions of whether the petitioner is in custody pursuant to a valid judgment of conviction or whether the convicting court had proper jurisdiction. Id.; see also Garrison v. Kelley, 2018 Ark. 8, 534 S.W.3d 136. Parole eligibility falls clearly within the domain of the executive branch––specifically, the ADC––as fixed by statute. Johnson v. State, 2012 Ark. 212. A question regarding parole eligibility is not properly raised in a habeas proceeding because it does not challenge the circuit court‘s jurisdiction or the facial invalidity of the judgment. Watkins, 2018 Ark. 215, 549 S.W.3d 908; Garrison, 2018 Ark. 8, 534 S.W.3d 136. Finney did not meet his burden of establishing probable cause by affidavit or other evidence that he is detained without lawful authority.
V. Challenge to Plea of Guilty
Allegations of an involuntary or unknowing plea or improper plea procedures do not raise a question of a void or illegal sentence such as may be addressed in a habeas corpus proceeding. When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283. Claims of trial error are not within the purview of a writ of habeas corpus. Stephenson v. Kelley, 2018 Ark. 143, 544 S.W.3d 441.
To the extent that Finney intended the allegation that he did not understand his parole-eligibility status when entered his plea as an attack on the validity of the plea or as a claim of ineffective assistance of counsel, the allegation should have been raised in a timely petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). Barber v. Kelley, 2017 Ark. 214. A habeas proceeding is not a substitute for filing a timely petition for postconviction relief or an opportunity to raise the issue again if it has already been considered in a Rule 37.1 proceeding. See Clay v. Kelley, 2017 Ark. 294, 528 S.W.3d 836.
Affirmed.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I would reverse, grant the writ of habeas corpus, and appoint Finney counsel. Contrary to the conclusion reached by the majority, not only has Finney stated a
In 2014, Finney entered a plea of guilty to second-degree murder. At that time, Finney had a prior conviction for aggravated robbery. Finney‘s commitment order for the second-degree murder conviction states that he was sentenced pursuant to
However, Finney is being treated as though he was sentenced pursuant to
But let us assume for a moment that Finney was properly sentenced pursuant to
(b)(1) An inmate under sentence for one (1) of the following felonies is eligible for discretionary transfer to the Department of Community Correction by the Parole Board after having served one-third ( ⅓ ) or one-half ( ½ ) of his or her sentence, with credit for meritorious good time, depending on the seriousness determination made by the Arkansas Sentencing Commission, or one-half ( ½ ) of the time to which his or her sentence is commuted by executive clemency, with credit for meritorious good time:
(A) Unless the offense is listed under § 16-93-612(e)(1), the following offenses:
. . .
(iii) Murder in the second degree[.]
. . .
(h) An inmate who is sentenced under the provisions of § 5-4-501(c) or § 5-4-501(d) for a serious violent felony or a felony involving violence may be considered eligible for parole or for community
correction transfer upon reaching regular parole or transfer eligibility, but only after reaching a minimum age of fifty-five (55) years.
However, the majority insists that Finney must serve 100 percent of his sentence without ever being considered for parole. The purported basis of this conclusion is a completely different statute,
Any person who commits a violent felony offense or any felony sex offense subsequent to August 13, 2001, and who has previously been found guilty of or pleaded guilty or nolo contendere to any violent felony offense or any felony sex offense shall not be eligible for release on parole by the board.
This statute provides that a defendant who has a prior violent felony and is then convicted of an additional violent felony is not eligible for parole on the later conviction. However, in Finney‘s case,
Finney has stated a colorable cause of action. We should be remanding to the circuit court for further proceedings.
I dissent.
Harlon L. Finney, pro se appellant.
Leslie Rutledge, Att‘y Gen., by: Karen Virginia Wallace, Ass‘t Att‘y Gen., for appellee.