Summary
dismissing appeal from order denying multiple requests for issuance of a writ of habeas corpus pursuant to Arkansas Code Annotated section 16-112-103 (Repl. 2006) and for scientific testing of evidence pursuant to Act 1780
Summary of this case from Hill v. StateOpinion
CR 09-1227
Opinion Delivered February 25, 2010
Pro se Motion To file Belated Brief [Circuit Court of Grant County, Cr 95-38, Hon. Chris E. Williams, Judge], Appeal Dismissed; Motion Moot.
In 1995, appellant Jessie Hill was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. We affirmed. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). Subsequently, appellant unsuccessfully pursued various postconviction remedies.
See Hill v. State, CR 05-834 (Ark. May 18, 2006) (unpublished per curiam) (affirming the denial of a petition for writ of habeas corpus pursuant to Act 1780 of 2001 filed in the trial court); Hill v. State, CR 96-720 (Ark. Mar. 13, 2008) (unpublished per curiam) (denying appellant's petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis filed in this court); Hill v. State, CR 08-1437 (Ark. Apr. 9, 2009) (unpublished per curiam) (dismissing appeal from order denying multiple requests for scientific testing of evidence pursuant to Act 1780 of 2001 as amended by Act 2250 and codified at Arkansas Code Annotated §§ 16-112-201 to-208 (Repl. 2006)).
In 2009, appellant filed in the trial court a pro se "Motion to Vacate, Set Aside and Discharge, § 16-112-103(a); Motion to Dismiss Information; and Motion for a Judgment of Acquittal FRCrP Rule 29; Motion for Declaratory Judgment." Shortly after filing the motion, appellant filed a "Motion for Declaratory Judgment," urging the court to grant the first motion. Grounds for the motions were the claims that the evidence was insufficient to sustain the judgment of conviction, that evidence was illegally seized, and that appellant had not been properly advised of his Fifth Amendment rights. The trial court denied the relief sought, and appellant has lodged an appeal of the order in this court. He now seeks by pro se motion leave to file a belated brief. Because it is clear that appellant cannot prevail on appeal, we dismiss the appeal. The motion is moot.
An appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Grissom v. State, 2009 Ark. 557 (per curiam); Pineda v. Norris, 2009 Ark. 471 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam). Here, appellant failed to establish that his motions merited the relief sought.
The allegations raised by appellant were either raised at trial or could have been raised at trial. Appellant's motions were clearly an attempt to fashion a postconviction remedy that is not allowed by our procedural rules in order to mount a direct attack on the judgment of conviction entered against him. Even where a petitioner files a timely petition for postconviction relief under our postconviction rule, Criminal Procedure Rule 37.1 (2009), the rule does not permit a direct attack on the judgment or substitute for an appeal. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992) (per curiam). It is well settled that even questions of a constitutional dimension are waived if not brought in accordance with the prevailing rules of procedure. See Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989) (per curiam).
With respect to appellant's reference to Arkansas Code Annotated § 16-112-103(a) (Repl. 2006), a circuit court does not have jurisdiction to release on a writ of habeas corpus a prisoner not in custody in that court's jurisdiction. Branning v. Harmon, 2009 Ark. 533 (per curiam) (citing Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999) (per curiam)); see also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). The verification on appellant's motions reflected that he was not incarcerated within the jurisdiction of the trial court when he filed the motions.
As to appellant's arguments concerning the scientific validity of evidence, he has raised the same claims in multiple pleadings. This court's decision in Hill v. State, CR 08-1437 (Ark. Apr. 9, 2009) (unpublished opinion), notes that the series of pleadings appellant filed in the trial court in 2008 were specifically treated as a petition for writ of habeas corpus pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005, and codified at Arkansas Code Annotated §§ 16-112-201 to-208 (Repl. 2006). Act 1780 provides that a writ of habeas corpus can be issued based on new scientific evidence proving that a person is actually innocent of the offense for which he or she was convicted. Appellant sought DNA and fingerprint testing to prove his actual innocence. After a hearing, the court denied relief, and on appeal, we affirmed. In that decision, we also noted that appellant had previously sought the same type of testing in a prior Act 1780 petition filed in 2003. In denying the prior petition, the trial court found that the testing sought was not new or novel, as it was available at the time of his trial. As we said, appellant is precluded from seeking the same type of scientific testing in another petition pursuant to the law-of-the-case doctrine. Green v. State, 343 Ark. 244, 33 S.W.3d 485 (2000). The doctrine dictates that an issue raised and concluded in a prior appeal decision may not be revisited in a subsequent appeal as the matter becomes res judicata. Id. (citing Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961); Bowman v. State, 93 Ark. 168, 129 S.W. 80 (1909); Perry v. Little Rock Fort Smith Ry. Co., 44 Ark. 383 (1884)). Appellant simply reiterated claims in the 2009 motions that had been raised in 2003 and 2008.
Appeal dismissed; motion moot.