Olаjuwon SMITH, Appellant v. Ray HOBBS, Director, Arkansas Department of Correction, Appellee
No. CV-15-344
Supreme Court of Arkansas
Opinion Delivered July 23, 2015
2015 Ark. 312
In 2014, Smith filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus seeking release from custody. The petition was dismissed on November 24, 2014. On December 12, 2014, before the time for filing a notice of appeal had elapsed, Smith filed a motion asking that the order be modified and vacated. The motion was
Now before us are Smith’s pro se motions for a copy of pretrial proceedings and docket sheet, for an extensiоn of time to file his brief-in-chief, and for leave to supplement the record. In the motion to supplement the record, Smith requests permission to include in the appeal recоrd a personal affidavit in which he asserts that a 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 nоt referenced in either of the circuit court’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 aрpellate jurisdiction, receive testimony or consider anything outside of the record below. See, e.g., Darrough v. State, 2013 Ark. 28 (per curiam).
Because it is clear from the record that Smith could not prevail if the аppeal were permitted to go forward, we dismiss the appeal and find his remaining motion for copies and for extension of time moot. Sims v. State, 2015 Ark. 41 (per curiam). An appeal of the denial of рostconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to proceed when the appeal is without merit. Robinson v. Felts, 2015 Ark. 174 (per curiam).
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. Here, the circuit court correctly determined that Smith did not аllege grounds in his petition or the motion for modification of order on which the writ could be granted.
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, 2013 Ark. 416. The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained.
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 poliсe and the prosecution; he
It appears that Smith may have misconstrued the scope of a habeas corpus proceeding. Such a proceeding does not afford a рrisoner an opportunity to retry his case.2 Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283. Accordingly, claims of trial error are not within the purview of the remedy inasmuch as a writ of habeas corpus will not be issued to correct errors or irregularities that occurred at trial. See Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Habeas proceedings are also not a means to challenge the sufficiency of the evidence in a casе. Griffis v. Hobbs, 2015 Ark. 121, 458 S.W.3d 703 (per curiam). Claims of an involuntary plea or improper plea procedures also do not raise a question of a void or illegal sentence such as may be addressed in a habeas corpus proceeding. Id. Likewise, alleged flaws in a search or arrest warrant are matters to be addressed in the trial court and do not call into question the trial court’s jurisdiction or the facial validity of the judgment in a criminal case. This court has specifically held that a trial court’s jurisdiction to try an accused does not depend upon the validity of the arrest of the accused. Jones v. State, 2014 Ark. 67 (per curiam). We have likewise noted that the validity of a search warrant is a matter to be settled in the trial court. Daniels v. Hobbs, 2011 Ark. 192 (per curiam).
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, 2011 Ark. 6 (per curiam) (citing Barker v. Wingo, 407 U.S. 514 (1972)). A petition for writ of habeas corpus is not the propеr method with which to raise a statutory claim that does not affect the court’s jurisdiction or the facial validity of the judgment. See Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006).
Allegations of prosecutorial misconduct also dо not fall within the scope of a habeas proceeding. Tryon v. Hobbs, 2011 Ark. 76 (per curiam). This includes claims of prosecutorial misconduct based on an allegation of withheld evidence. Fuller v. State, 2012 Ark. 376 (per curiam). If Smith intended his allegation that he was not advised of the charges against him 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, 2015 Ark. 121. A petition for writ of habeas corpus attacking the judgment of conviction is not a means to attack the charging instrument. Id.
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 proceedings. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). A writ of habеas corpus will not be issued as a substitute for pursuing postconviction relief in accordance with the prevailing rules of procedure. See Mackey v. Lockhart, 307 Ark. 321, 322, 819 S.W.2d 702, 704 (1991). With respect to Smith’s challenge to the trial court’s rulings on his Rule 37.1 petitions, any argument he desired to raise concerning the correctness of the orders should have been raised through an appeal to this court аnd cannot now be a basis for a writ of habeas corpus.
The principal issue in a habeas corpus proceeding is whether the petitioner is detained without lawful authority. Fullerton v. McCord, 339 Ark. 45, 48, 2 S.W.3d 775, 777 (1999). In his request for the writ, Smith failed to demonstrate that he was detained without lawful authority. Because he failed to show that his commitment was invalid on its face or that the trial court lacked jurisdiction, he did not establish any cause to grant a writ of habeas corpus. For that reason, there is no merit to the appeal. See Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007).
Appeal dismissed; motion to supplement recоrd denied; motion for copies and for extension of time moot.