Smith v. HobbsSmith v. Hobbs
APPEAL DISMISSED; MOTIONS AND PETITION MOOT.
PER CURIAM
Appellant John J. Smith pled guilty to a charge of aggravated robbery, pursuant to a negotiated plea agreement, and he was sentenced to 180 months’ incarceration in the Arkansas Department of Correction (“ADC”). Subsequently, appellant filed in the circuit court a petition for postconviction relief under
On December 13, 2011, appellant filed in the county in which he is incarcerated a petition for writ of habeas corpus pursuant to
A writ of habeas corpus is only proper when a judgment of conviction is invalid on its face or when a circuit court lacked jurisdiction over the cause. Fudge, 2012 Ark. 80 (citing Abernathy v. Norris, 2011 Ark. 335 (per curiam)). The burden is on the petitioner in a habeas corpus petition 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. Craig v. Hobbs, 2012 Ark. 218 (per curiam); Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). To meet this burden, 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. See Culbertson v. State, 2012 Ark. 112 (per curiam);
Appellant’s original petition raised two claims as bases for habeas relief. First, he asserted that his conviction is invalid because, at the time that he entered his guilty plea, appellant believed that he would serve only 70 percent of his sentence before he became
Even assuming that appellant’s claim is true, it is clear that his argument is not cognizable in a petition for writ of habeas corpus. A habeas corpus proceeding in state court is generally unavailable for challenging parole matters. See Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987). Appellant does not contend that section 16-93-609 should not have been applied to him; at most, he seems to contend that he was not informed about the statute’s applicability prior to entering his plea. To the extent that appellant believes that his attorney should have informed him about the statute, such a claim would be tantamount to an allegation of ineffective assistance of counsel, and ineffective-assistance claims are not cognizable in petitions for writ of habeas corpus. See Tarkington v. Norris, 2012 Ark. 147 (per curiam). All claims of ineffective assistance must be brought under a timely Rule 37.1 petition, and a petition for writ of habeas corpus is not a substitute for a timely petition for postconviction relief. See id. (citing Meny v. Norris, 340 Ark. 418, 13 S.W.3d 143 (2000) (per curiam)).
Nor was the circuit court under any duty to explain issues of parole eligibility to appellant prior to sentencing. See Wells v. State, 279 Ark. 55, 648 S.W.2d 466 (1983)
As his second basis for writ of habeas corpus, appellant contended that he was denied his constitutional right to counsel when the circuit court refused to appoint counsel to represent appellant for purposes of seeking postconviction relief under Rule 37.1. However, postconviction matters, such as Rule 37.1 petitions, are considered civil in nature, and there is no absolute right to appointment of counsel. See Walton v. State, 2012 Ark. 269 (per curiam) (citing Noble v. State, 2011 Ark. 200 (per curiam)). Moreover, allegations that a defendant was denied counsel are not cognizable in a petition for writ of habeas corpus. See Tryon v. Hobbs, 2011 Ark. 76 (per curiam). Whether counsel was appointed to represent appellant in his Rule 37.1 proceeding has no bearing on whether the trial court lacked jurisdiction over appellant, nor would failure of the circuit court to appoint Rule 37.1 counsel establish that appellant’s commitment was invalid on its face. Thus, nothing in appellant’s allegation would provide a basis on which a writ of habeas corpus could issue. See Young v. Norris, 365 Ark. 219, 226 S.W.3d 797;
Because it is clear that appellant could not prevail if his appeal were allowed to proceed, the appeal is dismissed. Appellant’s motions and petition are moot.
Appeal dismissed; motions and petition moot.
No response.