liRiсhard Leon Strong was found guilty by a jury of two counts of rape,
Because we determine that the allegations in the pеtition are such that it is clear that appellant cannot prevail, we dismiss the appeal, and appellant’s motions are moot. An appeal from an order that denied a petition for рostconviction relief, including an appeal from an 12order denying a petition for writ of habeas corpus based on new scientific evidence, will not be permitted to go forward where it is clear thаt the appellant could not prevail. Douthitt v. State,
Appellant asserted the following in his motion to vacate judgment under Act 1780 of 2001, codified at Arkansas Code Annotated §§ 16-112-201 to -208 (Repl.2006): a request for further DNA testing of a sock and a bed sheet, a request for scientific comparison of fibers allegedly found at the crime scene, a claim of prosecutorial misconduct based on appellant’s allegаtion that the State hid evidence regarding the ownership of the sock in question, claims of due process and equal protection violations, a claim that the trial court abused its discretion,
Act 1780 of 2001 provides that a writ of habeas corpus can issue based upon new scientific evidence proving a person actually innocent of the offense for which he was convicted. Douthitt,
A. DNA testing or retesting of evidence
Appellant’s petition referenced a number оf common DNA tests that he requested to have performed on the evidence. Specifically, appellant sought to have the DNA found on the sock retested to determine if it matched appellаnt’s DNA, and he sought to have the bed sheet retested to determine if it contained any DNA whatsoever. Appellant failed, however, to satisfy the predicate requirement that the petitioner’s identity has been at issue during either the investigation or prosecution of the crime. Ark.Code Ann. § 16-112-202(7).
As we noted in appellant’s direct appeal, the fifteen-year-old victim in this case, KM., grew up in the home of appellant and his wife after she was left in their care by her biological mother. Strong,
The second rape occurred in appellant’s mother’s apartment three days after the first incident, and it was following this rape that appellant had cleaned himself with the sock, according to K.M. Id. at 407-08,
hCIearly, it is essential to every case that the defendant be shown as the one who committed the crime. Standridge v. State,
Regarding whether the identity of appellant was at issue during his trial, we note that there is a subtle, but important, distinction between allegations of rape when the attacker is someone the victim knows and when the attacker is unknown to the victim at the time. In the former situation, the questions of whether the victim was raped and whether the defendant was the rapist are inextricably intertwined, such that answering one in the affirmative requires answering the other in the affirmative. See generally Bryant,
Conversely, in the latter situation, where the attacker is unknown to the victim, the questions of whether the victim was raped and whether the defendant was the rapist are not linked because it is possible that someone other than the defendant committed the crime. Thus, the evidence at trial could establish beyond a reasonable doubt that the victim was |firaped, but the defendant could nevertheless be acquitted due to a failure to establish the rapist’s identity beyond a reasonable doubt. It is only in this second scenario that the defendаnt’s identity was “at issue” within the meaning of Act 1780.
The instant case is of the former type, where the attacker’s identity was known at the time of the alleged rape, as K.M. did not allege generally that she was raped, but spеcifically that she was raped by appellant. Strong,
B. Scientific Comparison of Fibers Found at the Crime Scene
As an additional basis for relief under Act 1780, appellant requested that certain unspecified fibers found at the crime scene be “compared with samples had from (clothing, carpet, etc.) from any crime scene, or suspect.” Appellant argued that he might be able to “make use” of the results of such testing to establish his actual innocence. A petition for this |7type of scientific testing is governed by the same statute as a request for DNA testing, and that statute imposes the same predicate requirements on all рetitions thereunder. Again, appellant has failed to establish the predicate requirement that his identity was at issue during the investigation of the alleged rapes or at his trial. Appellant therefore fails to satisfy the predicate requirements under Arkansas Code Annotated § 16-112-202(7); see Douthitt,
C. Non-cognizable Claims Under Act 1780
The remainder of appellant’s petition asserted a number of claims that are not cognizable under Act 1780, including a claim of prosecutorial misconduct based on appellant’s allegatiоn that the State hid evidence regarding the ownership of the socks in question, claims of due process and equal protection violations, a claim that the trial court abused its discretion, and a general claim that the evidence used to convict appellant was insufficient. All of these claims should have been raised on direct appeal, in a petition for postconviction relief, or in a petition for writ of error coram nobis. An Act 1780 petition is limited to issues of scientific testing. See Davis v. State,
kD. Conclusion
The record clearly shows that appellant was not entitled to relief under Act 1780. As such, he could not prevail if his appeal were to proceed, and we dismiss the appeal accordingly. His motions for access to the record and for appointment of counsel are moot.
Appeal dismissed; motions moot.
Notes
. Appellant was convicted of two counts of rape against the same victim. Strong v. State,
. Appellant did not actually explain in what way the trial court abused its discretion.
. We noted, however, that no corroboration was needed to sustain a conviction for rape. Strong,