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SUPREME COURT OF ARKANSAS

No. CV-15-385

REGINALD EARLY

PETITIONER

V.

RAY HOBBS, DIRECTOR, ARKANSAS

DEPARTMENT OF CORRECTION

RESPONDENT

Opinion Delivered July 23, 2015

PRO SE MOTION FOR BELATED

APPEAL

[LEE COUNTY CIRCUIT COURT, NO.

39CV-14-75]

HONORABLE RICHARD L.

PROCTOR, JUDGE

MOTION TREATED AS MOTION FOR

RULE ON CLERK AND DENIED.

PER CURIAM

Petitioner Reginald Early filed in this court a motion for belated appeal of an order that

denied a petition for writ of habeas corpus filed in the Lee County Circuit Court. As the notice

of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appeal

rather than a motion for belated appeal. Holland v. State, 358 Ark. 366, 367, 190 S.W.3d 904, 905

(2004).

As Early indicates in the motion, the record was first tendered to this court on December

30, 2014. Our clerk declined to lodge it because it did not contain Early’s petition for writ of

habeas corpus. Our rules of procedure require that the record be tendered to this court within

ninety days of the date of the notice of appeal. Ark. R. App. P.–Civ. 5 (2014). In this case, the

notice of appeal was filed on October 6, 2014, and Early did not tender a record containing the

habeas petition to this court until he filed the instant motion on May 1, 2015.

When a petitioner fails to perfect an appeal in accordance with the prevailing rules of
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procedure, the burden is on the petitioner, even if he is proceeding pro se, to establish good

cause for failure to comply with the procedural rules. See, e.g., Butcher v. State, 345 Ark. 222, 45

S.W.3d 378 (2001) (per curiam) (acknowledging that a petitioner is not permitted to proceed

with a belated appeal in a criminal matter, unless he demonstrates some good cause for his

failure to perfect an appeal) (citing Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987). Early

alleges in his motion that the circuit clerk provided him with an insufficient record, and any

procedural default should be excused.

We need not consider Early’s asserted grounds for good cause. It is clear from the record

that he could not prevail on appeal if he were allowed to proceed. An appeal of the denial of

postconviction relief, including an appeal from an order that denied a petition for writ of habeas

corpus, will not be permitted to go forward where the appeal is without merit. Seaton v. State, 324

Ark. 236, 237, 920 S.W.2d 13, 14 (1996) (per curiam) (citing Chambers v. State, 304 Ark. 663, 803

S.W.2d 932 (1991) (per curaim); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990) (per

curiam); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) (per curiam)). Here, Early did not

allege grounds in his petition on which the writ could be granted.

In his petition for writ of habeas corpus, Early alleged that the judgment was invalid on

its face because his trial counsel was ineffective for failing to make an appropriate motion for

directed verdict. Early also alleged that the judgment was invalid because the evidence against

him was insufficient in that his accomplice’s testimony was not corroborated. A writ of habeas

corpus will issue when a judgment of conviction is invalid on its face or when the trial court

lacks jurisdiction over the cause. Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533. Although Early

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alleged that the judgment was invalid on its face, the supporting bases Early asserted for that

allegation, ineffective assistance of counsel and a lack of sufficient evidence, are not cognizable

claims in proceedings for the writ.

Early contended in the petition for the writ that the particular claim of ineffective

assistance that he would raise was one that would not, at the time, have entitled him to relief in

proceedings under Arkansas Rule of Criminal Procedure 37.1. Ineffective assistance of counsel

claims are not cognizable by habeas corpus—regardless of whether those claims would have

been successful if raised in a timely Rule 37 proceeding. See, e.g., McConaughy v. Lockhart, 310

Ark. 686, 840 S.W.2d 166 (1992) (holding that ineffective assistance of counsel claims are not

cognizable in habeas corpus proceedings). Questions that require factual inquiry that goes well

beyond the facial validity of the commitment are not the sort cognizable in habeas proceedings. 

Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam). Moreover, a habeas

proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute

for direct appeal or other postconviction relief. Noble v. Norris, 368 Ark. 69, 243 SW.3d 260

(2006).

 We affirm a denial of habeas relief where an appellant did not establish any cause to grant

the writ. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). The circuit court could not

properly grant the writ on either of the grounds Early alleged. It is clear that Early cannot

prevail on appeal, and we deny his motion to proceed with an appeal.

Motion treated as motion for rule on clerk and denied. 

WYNNE, J., not participating

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