Case Information
SUPREME COURT OF ARKANSAS No. CV -15-344
Opinion Delivered July 23, 2015 OLAJUWON SMITH
APPELLANT PRO SE MOTIONS FOR COPY OF PRETRIAL PROCEEDING AND V. DOCKET SHEET AND FOR
EXTENSION OF TIME TO FILE BRIEF AND TO SUPPLEMENT RAY HOBBS, DIRECTOR, RECORD
ARKANSAS DEPARTMENT OF [CHICOT COUNTY CIRCUIT CORRECTION COURT, NO. 09CV-14-41]
APPELLEE
HONORABLE DON GLOVER, JUDGE
APPEAL DISMISSED; MOTION TO SUPPLEMENT RECORD DENIED; MOTION FOR COPIES AND FOR EXTENSION OF TIME MOOT.
PER CURIAM
On Nоvember 4, 2013, judgment was entered reflecting that appellant Olajuwon
Smith had entered pleas of guilty to multiple felony offenses. He was sentenced to an
aggregate term of 480 months’ imprisonment. Imposition of an additional 120 months’
imprisonment was suspended. Smith subsequently filed in the trial court a pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal Prоcedure 37.1 (2013), which
was dismissed on the ground that it did not comply with the Rule. Smith then filed a second
such petition, which the court denied. We affirmed the order.
Smith v. State
,
Now before us are Smith’s pro se motions for a copy of pretrial proceedings and
docket sheet, for an extension of time to file his brief-in-chief, and for leave tо supplement
the record. In the motion to supplement the record, Smith requests permission to include in
the appeal record a personal affidavit in which he asserts that а pretrial hearing was held on
October 14, 2013, and that, following that hearing, the circuit court ordered that he wear a
“kidney belt” during trial.
[1]
We deny Smith’s request to include the affidavit in the appeal
record, and, to the extent that Smith may seek permission to supplement the record to include
the October 14, 2013 pretrial hearing, we deny that request as well. The affidavit was not
before the circuit court for consideration when it denied Smith’s request for habeas relief.
Moreover, the October 14, 2013 pretrial hearing is not referenced in either of the circuit
cоurt’s orders, which are the subject of the instant appeal. This court has long and
consistently held that it cannot, in the exercise of its appellate jurisdiction, receive testimony
оr consider anything outside of the record below.
See, e.g.
,
Darrough v. State
,
Because it is clear from the record that Smith could not prevail if the appeal were
permitted to go forward, we dismiss the аppeal and find his remaining motion for copies and
for extension of time moot.
Sims v. State
,
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings
are 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 circuit court lacked jurisdiction over the cause.
Fields v. Hobbs
,
Smith raised the following claims as grounds for a writ of habeas corpus: he was denied his right to a speedy trial; the search warrant and the arrest warrant in his case were illegally
obtained by means of false information and misconduct on the part of the police and the
prosеcution; he did not get proper notice of the charges against him and was taken to trial on
the day that he was charged; he would not have entered a plea of guilty in the middle of his
trial if not for misconduct by the State and his attorney; he was coerced into pleading guilty
by evidence that had been tampered with and by having to wear a “stun belt” in the
courtroom; the State confused him as to which documents it was referring to in proceedings
against him; the State withheld documents in violation of
Brady v. Maryland
,
It appears that Smith may have misconstrued the scope of a habeas corpus proceeding.
Such a proceeding does not afford a prisoner an opрortunity to retry his case.
[2]
Hobbs v.
Turner
,
As to Smith’s argument that the writ should issue on the ground that he was denied
a speedy trial, speedy-trial issues can be waived and are not cognizable in a habeas proceeding.
Davis v. State
,
Allegations of prosecutorial misconduct also do nоt fall within the scope of a habeas
proceeding.
Tryon v. Hobbs
,
as a challenge to the sufficiency of the felony information, we have consistently held that the
proper time to object to the form or sufficiency of a charging instrument is prior to trial.
Griffis
,
In addition to claims of trial error, Smith argued that he was denied effective assistance
of counsel in the trial court and that the trial court erred when it denied his Rule 37.1
petitions. Neither issue is a ground for a writ of habeas corpus. Ineffective-assistance-of-
counsel claims are properly limited to Rule 37.1 proceedings, not habeas рroceedings.
McConaughy v. Lockhart
,
The principal issue in a habeas-corpus proceeding is whether the petitioner is detained
without lawful authority.
Fullerton v. McCord
,
466 (2007).
Appeal dismissed; motion to supplemеnt record denied; motion for copies and for extension of time moot.
Notes
[1] Smith attached the same affidavit to the motion for copies of pretrial proceedings and dоcket sheet and for extension of time to file brief-in-chief. He also asked in that motion for a copy of the transcript of the October 14, 2013 pretrial hearing.
[2] When a defendant enters a plea of guilty, the plea is his or her trial.
Crockett v. State
, 282
Ark. 582,